Nathaniel Story v. Dedham, Town of - Police Department (SPR 20232708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2023 SPR23/2708 Officer Ronald Pucci Records Access Officer Dedham Police Department 600 High Street Dedham, MA 02026 Dear Officer Pucci: I have received the petition of Nathaniel Story appealing the response of the Dedham 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 22, 2023, Mr. Story requested: [1] Summary of Disciplinary Records Submission –Dedham.xlsx [2] Disciplinary Records Transferred Officers Dedham Police.xlsx [3] Dedham PD Disciplinary Records Update.xlsx[.] In addition, Mr. Story requested “these documents be provided in their original file format (XLSX) and not as a PDF file.” Prior Appeal This request was the subject of a prior appeal. See SPR23/2337 Determination of the Supervisor of Records (October 16, 2023). In my October 16th determination, I found that it was unclear how the Department could redacted the records pursuant to Exemption (c). I further found that the Department must clarify whether the responsive records can be provided in the format that Mr. Story requested. The Department responded on October 30, 2023. Unsatisfied with the Department’s response, Mr. Story petitioned this office and this appeal, SPR23/2708, 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 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

Officer Ronald Pucci SPR23/2708 Page 2 November 22, 2023 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). 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. Att’y 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s October 30th Response In its October 30, 2023 response, the Department states, “[t]he Department made minimal redactions pursuant to Exemption (c) of the Public Records Law. The Department referenced its prior response dated September 22, 2023. In its September 22nd response, the Department stated: Certain redactions were made to the enclosed records pursuant to Exemption (c) of the Public Records Law…. Exemption (c) was recently amended, both with respect to personnel records and law enforcement misconduct investigation records. As specifically stated in the Supervisor’s Guide, as updated after the recent amendment to Exemption (c), at p. 17: At this time, it is unclear how these changes to Exemption (c) will impact how we balance the privacy interests of individual employees with the public’s rights under the Public Records Law, specifically with respect to disciplinary documentation of law enforcement personnel. In the absence of any statutory or regulatory guidance, or any case law interpreting the recently-revised provisions of Exemption (c), in this instance, the Department may withhold or redact responsive records pursuant to Exemption (c), after making the required analysis as to whether disclosure of the requested records at this time is such that the public’s right to know outweighs any individual officer’s privacy rights, and after consideration of the factors set forth in the PETA case…. The Department also notes that the scope of the statutory amendment to Exemption (c) as part of police reform legislation, and the POST Commission’s grant of authority regarding the release of police officers’ information is currently

Officer Ronald Pucci SPR23/2708 Page 3 November 22, 2023 the subject of ongoing litigation in the case of Eric Mack v. Office of the District Attorney of the Bristol County, SJC-13468…which the Supreme Judicial Court (SJC) is reviewing pursuant to its grant to direct appellate review. In the Mack case, the SJC is specifically considering whether “the Legislature’s grant of authority to [the POST Commission] was intended to create the exclusive avenue for members of the public to obtain access to the names of the law enforcement officers under investigation.”…. Current Appeal In his appeal, Mr. Story asserts, “[t]he department is redacting the discipline column of the requested spreadsheets citing Exemption (c). I believe Exemption (c) does not apply.” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017).

Officer Ronald Pucci SPR23/2708 Page 4 November 22, 2023 This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Preferred Format G. L. c. 66, § 6A(d) provides, in pertinent part, that “[t]he records access officer shall, to the extent feasible, provide the public record in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.04(5)(d) (“to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. In the absence of a preferred format, the records shall be provided in a searchable machine-readable form[.])” With regard to providing the records in a preferred format, the Department advises that “... it is not feasible to provide the records in an excel format given the redactions made to the charts submitted to the POST Commission [and] ... the records were previously provided electronically.” Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. With respect to Mr. Story’s records request, these requested records are the subject of a dispute in active litigation. See Eric Mack v. Office of the District Attorney of the Bristol District No. SJC-13468.

Officer Ronald Pucci SPR23/2708 Page 5 November 22, 2023 In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I also decline to opine on the applicability of Exemption (c) to the records request. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Nathaniel Story