Nathaniel Story v. Truro, Town of - Police Department (SPR 20232388)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2023 SPR23/2388 Jamie M. Calise Chief of Police Truro Police Department 344 Route 6 P. O. Box 995 Truro, MA 02666 Dear Chief Calise: I have received the petition of Nathaniel Story appealing the response of the Truro Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2023, Mr. Story requested “…all emails, including any attachments, sent by any truro-ma.gov email address to the address: POSTCReports@mass.gov between the dates 9/30/2021 to present.” Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2219 Determination of the Supervisor of Records (September 22, 2023). In my September 22nd determination, I found that the Department did not meet its burden to redact the responsive records pursuant to Exemption (c) of the Public Records Law. On October 4, 2023, the Department provided a further response further explaining the redactions pursuant to Exemption (c) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Story petitioned this office and this appeal, SPR23/2388, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chief Jamie M. Calise SPR23/2388 Page 2 October 23, 2023 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Department’s October 4th response In its October 4, 2023 response, the Department stated that it had redacted responsive records pursuant to Exemption (c) of the Public Records Law. The Department stated the following: As you know, you were previously provided with records responsive to this public records request. After further review in good faith, it remains the Department’s position that disciplinary information redacted from the charts provided to you previously are properly exempt from public disclosure pursuant to Exemption (c) to the Massachusetts Public Records Law. The Department assessed the records and concluded that limited personnel information – specifically disciplinary information regarding specifically identified individuals contained in the charts submitted to the POST Commission by the Police Department, was appropriately redacted pursuant to Exemption (c) of the Public Records Law. G.L. c. 4, §7(26)(c). . . . While the Supervisor requested further information regarding the minimal redactions under Exemption (c) in light of the statutory amendments to Exemption (c) enacted as part of the Police Reform Act, and the Supervisor’s interpretation of Exemption (c) in its 2022 Guide at p. 17 following the amendment to Exemption (c), it is the Department’s position that there is nothing in the revised Exemption (c) that expressly abrogates the Worcester Telegram & Gazette decision, which expressly considered what information related to internal affairs investigation files was subject to public disclosure. There is a legal distinction between confidential personnel information and internal affairs or law enforcement misconduct investigative materials. Therefore, revised Exemption (c) can be interpreted as simply codifying the holding of Worcester Telegram & Gazette, in which instance redacting the express discipline imposed in any particular situation involving a police officer is consistent with the amended Exemption (c). The Department has carefully considered the application of Exemption (c) and the cases herein. The Department further notes that neither the Supervisor nor any Court has interpreted exactly how far amendments to Exemption (c) are intended to extend. Until such time, it is the Department’s position that the limited

Chief Jamie M. Calise SPR23/2388 Page 3 October 23, 2023 redactions made to the records provided to you are appropriate under Exemption (c) and the case law and Supervisor’s interpretation to Exemption (c) in its 2022 Guide cited above at p. 17. Further, the Department submits that any further appeals to the Supervisor should be declined, as the records submitted by the Police Department to POST that were already provided to the requester are part of the POST Commission’s ongoing administrative review at this time: https://www.mass.gov/info-details/officer-disciplinaryrecords-database; see 950 CMR 32.08(2)(b)(1). Specifically, as the POST Commission has stated with respect to its ongoing administrative review as of September 26, 2023: The POST Commission released the second update to the Law Enforcement Officer Disciplinary Records Database on September 19, 2023. This update addressed correcting certain items and adding information and fields to provide additional information. Note that POST is planning the release of additional data. We continue reviewing requests for corrections and/or updates and will append to the database on an ongoing basis. [emphasis supplied]. As the Supervisor noted in the determination, the Department acknowledges generally the public’s right to know whether public servants are performing their duties in a law-abiding manner. The Department contends that the limited redactions serve this function, while also properly balancing employees’ privacy interests in light of both PETA and the Worcester Telegram & Gazette decisions In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to redact responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Chief Jamie M. Calise SPR23/2388 Page 4 October 23, 2023 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story