Ronald G. Guilmette v. Amesbury, City of - City Clerk (SPR 20241814)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2024 SPR24/1814 Jennifer Smith City Clerk City of Amesbury 62 Friend Street Amesbury, MA 01913 Dear Ms. Smith: I have received the petition of Ronald G. Guilmette, of the Amesbury Patrol Officer’s Union, appealing the response of the City of Amesbury (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 22, 2023, Mr. Guilmette requested: [1.] ... letters dropped off to Mayor[’s] ... office in October of 2020 referenced in the Newburyport Daily News and any other letters sent to the Mayors [sic] office regarding complaints and allegations against administration and high ranking officers from the Amesbury Police Department[;] [2.] ... investigatory results and documentation regarding the investigation conducted to include any and all emails, correspondence or documents pertaining to the above mentioned allegations . . . . This is to include emails between [four identified City officials and one identified former City official and emails to an identified City official from an identified representative of the] Newburyport Daily News[;] [3.] ... information submitted from The Badge Quest Police Chief search to [two identified City officials and the] Amesbury Human Resource Department. This is to include any and all physical correspondence, emails or documents. This would also include any letters, emails or official correspondence sent to [two identified City officials] in regard to the hiring of [an identified City official;] [4.] ... documented complaints to the Amesbury Human Resources Department and Office of Mayor ... against [two identified City officials and one identified former City official]. 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

Jennifer Smith SPR24/1814 Page 2 July 5, 2024 Previous Appeal This request was the subject of a previous appeal. See SPR24/0308 Determination of the Supervisor of Records (February 15, 2024). In my February 15th determination, I ordered the City to provide Mr. Guilmette with a response to his request. On April 22, 2024, the City provided a response. Unsatisfied with the City’s response, Mr. Guilmette petitioned this office and this appeal, SPR24/1814, 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). 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. Current Appeal In his appeal, Mr. Guilmette contends that the City did not meet its burden to redact and withhold records responsive to Item 1 of his request. In regards to Items 2, 3 and 4 of his request, Mr. Guilmette states that the City “has still not completed the records request submitted in December of 2024 [sic]. In the response they advised they were still working on the… items requested.” The City’s April 22nd Response In its April 22, 2024 response, regarding Item 1 of the request, the City identifies two letters responsive to the request, provides a redacted copy of the first letter “pursuant to Exemptions (a) and (c)” of the Public Records Law, and further cites Exemption (c) to withhold the second letter in its entirety. Regarding Items 2, 3 and 4 of the request, the City states that it “is still compiling and analyzing potentially responsive records[.]”

Jennifer Smith SPR24/1814 Page 3 July 5, 2024 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In support of redacting under Exemption (a), the City contends: Here, one of the letters requested makes reference to, and indeed quotes from, a police report that would be exempt from disclosure by statute. However, identification of that statute in this forum would render meaningless the redactions made, as it would allow for speculation as to what allegations were made about the officer in question. Based on the City’s response, it is unclear what statute the City is claiming to withhold responsive records. The City is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). Consequently, the City must state the statute that permits it to withhold the records from disclosure. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating

Jennifer Smith SPR24/1814 Page 4 July 5, 2024 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). 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. 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). 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: (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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. In support of redacting and withholding pursuant to Exemption (c), the City argues: The letters include allegations which have already been reviewed and resolved, and found to be unsubstantiated. The publication of such unconfirmed allegations would cause the named officers reputational harm, baselessly due to the fact that

Jennifer Smith SPR24/1814 Page 5 July 5, 2024 the allegations are concluded. Further, the first letter, which has been redacted but provided, makes allegations about the personal and private life of one officer in particular. Accordingly, the first letter contains intimate details of a highly personal nature, and the disclosure of those details would absolutely result in personal embarrassment not only to this officer but to any similarly situated individual. The first two prongs of the required privacy interest… test are unquestionably met with respect to the first letter. With respect to the second letter, the allegations pertain to professional misconduct which arose from a misunderstanding within the Department, which misunderstanding was subsequently explored, clarified, and resolved. To publish those allegations now after it is known that there is no merit to them would result in unnecessary personal embarrassment to the named officer(s). Finally, the third prong of the privacy interest test is met with respect to both letters, which were presented to the Newburyport Daily News. The same information sought in the first [I]tem of [the] request is therefore available through the newspaper, and accordingly the City shall respect the privacy interests of the officers in question by disclosing one redacted letter and withholding the second outright. 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 letters responsive to Item 1 of the request are related to a law enforcement misconduct investigation. Further, where the City states that “[t]he same information sought in the first [I]tem of [the] request is… available through the newspaper,” it is unclear how any privacy interests at stake may be affected where the same information is available from other sources. Also, the City did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. Moreover, I find that the City has not demonstrated that the second letter responsive to Item 1 of the request may be withheld in its entirety under Exemption (c). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must clarify these matters.

Jennifer Smith SPR24/1814 Page 6 July 5, 2024 Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Whereas Mr. Guilmette’s request was submitted on December 22, 2023, and the City has not provided responsive records pertaining to Items 2, 3 and 4 of the request, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, the City must provide an estimated date as to when it intends to complete the search and provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Mr. Guilmette 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: Ronald G. Guilmette