Ben Berke v. Fall River, City of - Police Department (SPR 20241558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2024 SPR24/1558 Kenneth E. Fredette, Esq. Assistant Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Fredette: I have received the petition of Ben Berke, of 89.3 FM, appealing the response of the City of Fall River (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 6, 2024, Mr. Berke requested the following: [1.] All Personnel Early Warning System Reviews for [a named individual] [2.] Any reports filed by [two named] Officers . . . regarding the arrest of [another individual] on 12/21/20 or the subsequent altercation between [two individuals] that occurred during the booking process. Previous Appeal This request was the subject of a previous appeal. See SPR24/0656 Determination of the Supervisor of Records (March 15, 2024). In my March 15th determination, I closed SPR24/0656 in light of the City’s intent to provide a supplemental response. Subsequently, the City responded on March 25, 2024, claiming that responsive records are exempt from disclosure pursuant to Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). Unsatisfied with the City’s response, Mr. Berke further appealed, and this case 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

Kenneth E. Fredette, Esq. SPR24/1558 Page 2 June 6, 2024 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. 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 City’s March 25th Response In its March 25, 2024 response, the City cites Exemption (c) of the Public Records Law for withholding two documents responsive to Part 1 of the request, and explains that it does not possess records responsive to Part 2. See G. L. c. 4, § 7(26)(c). 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. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake:

Kenneth E. Fredette, Esq. SPR24/1558 Page 3 June 6, 2024 (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). When analyzing a privacy claim, there is 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. In its response, under Exemption (c), the City argues the following: The first clause of Exemption (c) allows the City to withhold all Personnel Early Warning System Reviews for [a named individual] because these types of reviews are employee work evaluations, not internal affairs investigations. See G.L. c. 4 §7(26)(c). Exemption (c) is made up of two separate clauses, the first of which exempts “personnel and medical files”. Although the statute does not explicitly define the term “personnel information”, exempt personnel records include, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion or termination information pertaining to a particular employee. Wakefield Teacher’s Ass’n vs. School Comm. of Wakefield, 431 Mass. 792 (2000). Employee work evaluations pertaining to a particular employee may be withheld pursuant to the first clause of Exemption (c) because they contain personnel information useful in making employment decisions regarding an employee. The Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Additionally, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In this case, based on the City’s response, it is unclear whether the responsive records are related to a law enforcement misconduct investigation. Further, based on the City’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the City did not provide information with respect to the balancing test, which examines whether the

Kenneth E. Fredette, Esq. SPR24/1558 Page 4 June 6, 2024 public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Berke with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Ben Berke