David Priest v. Marlborough, City of - City Clerk (SPR 20241889)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 16, 2024 SPR24/1889 Steven Kerrigan City Clerk City of Marlborough 140 Main Street Marlborough, MA 01752 Dear Mr. Kerrigan: I have received the petition of David Priest appealing the response of the City of Marlborough (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 27, 2024, Mr. Priest requested: [D]ocumentation and records concerning the investigation initiated following [a named individual]’s complaint filed on March 18, 2022, alleging discriminatory behavior by [a named individual] towards female and minority officers… [1.] Documentation related to the complaint filing and correspondence with Human Resources representative . . . [2.] Records indicating the date of initiation of the investigation within the specified timeframe [3.] Any communication or documentation indicating progress or updates on the investigation during this period. [4.] Copy of his/her complaint to serve as a receipt verifying that such complaint has been received and is being processed [5.] Notification of Charges/Allegations Form received by [a specified individual] Prior Appeals This request was the subject of prior appeals. See SPR24/1299 Determination of the Supervisor of records (May 10, 2024) and SPR24/1595 Determination of the Supervisor of records (June 10, 2024). In my June 10th determination, I found that the City had not met its burden to withhold records under Exemption (f) of the Public Records Law. The City responded on June 25, 2024. Unsatisfied with the response, Mr. Priest petitioned this office and this appeal, 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

Steven Kerrigan SPR24/1889 Page 2 July 16, 2024 SPR24/1889, was opened as a result. While this appeal was pending, the City provided a supplemental response on July 12, 2024. 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. The City’s June 25th Response In its June 25, 2024 response, the City cited Exemption (f) of the Public Records Law to withhold records and the attorney-client privilege to redact certain records. Upon review of the file, it appears Mr. Priest is not objecting to the redactions made under the attorney-client privilege. The City stated the following: The request references police department policies for police internal investigations. The MPD has no responsive records for any such internal affairs investigation. To the extent your request is for records that relate to a complaint made by a specified Marlborough Police employee to Human Resources, per the SPR determination, the HR Dept. has records relating to a complaint against the identified subject employee. The City is not confirming the identity of a complainant. Based on the request, additional responses to each paragraph are provided below: [Item 1]: The request remains vague as to what “documentation related to the complaint filing…” means. Notwithstanding, please see attached e-mails. [Item 2]: The request remains vague as to what “specified timeline” refers to. Notwithstanding, please see attached contract. [Item 3]: The request remains unclear. Notwithstanding, no responsive records in the referenced time period. [Item 4]: There is no responsive records as to a complaint “to serve as a receipt”.

Steven Kerrigan SPR24/1889 Page 3 July 16, 2024 [Item 5]: There are no responsive record as to “Notification of Charges/ Allegations Form.” After receiving the City’s June 25th response, Mr. Priest emailed the City on June 28, 2024, and clarified that he is seeking the following records from the period of May 18, 2022 to December 15, 2022: [1.] any correspondence exchanged between the Human Resources department, specifically [a named individual], and any employee of the City of Marlborough, regarding [two named individual’s] investigation. [2.] all interview audio and/or video recordings with members of the Marlborough Police Department and any other individuals associated with the investigation. Current Appeal In his appeal petition on July 1, 2024, Mr. Priest states the following: Despite multiple requests and appeals, the City has repeatedly failed to furnish the necessary documents, instead asking for clarifications that have already been clearly provided multiple times. We are specifically appealing the City’s response on the following grounds: [1.] Repetitive Requests for Clarification: The City continues to ask for clarification on our request, even though we have been very clear in specifying the documents we are seeking. We are looking for: [a.] Documents related to complaints filed by [a specified individual] against [a specified individual]. [b.] Correspondence between the Human Resources department, specifically [a named individual], and any employee of the City of Marlborough, regarding the investigation. [c.] Emails, memoranda, letters, and any other written communication within the specified timeframe from May 18, 2022, to December 15, 2022. [d.] Interview audio and/or video recordings related to the investigation. [2.] Failure to Provide Documents: The City’s refusal to disclose the requested documents, citing exemption (f) of the Massachusetts Public Records Law, is unfounded. The City’s July 12th supplemental response In its July 12, 2024 supplemental response, the City additionally cited Exemption (c) of the Public Records Law to withhold responsive records.

Steven Kerrigan SPR24/1889 Page 4 July 16, 2024 In its response, the City stated, “[t]he first part of the [Mr. Priest’s June 28th email] appears to clarify the records requested based on the City’s 6/25/24 response. Specifically . . . it appears that the scope of this request is ‘correspondence exchanged between the Human Resources department . . . and any employee of the City of Marlborough, regarding [an identified complainant] and an identified officer ‘investigation’.” Without confirming the identity of the complainant, the City has identified responsive records. However, for the reasons stated, under the public records law on the basis of exemption (c) and (f), the records are withheld. . . .The second part of the appeal is not addressed in the City’s 6/25/24 response because ‘audio/video recordings’ were not part of the documents that were the subject of the public records request made on March 27, 2024. To the extent this is an appeal of a different response by the City to an entirely separate public records request, as stated above and in response to that separate request, the subject audio recordings are withheld on the basis of exemption (c) and (f).” 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: (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

Steven Kerrigan SPR24/1889 Page 5 July 16, 2024 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. Under Exemption (c), the City stated, “the requested records constitute ‘personnel information’ in ascertaining employee conduct in a manner that is useful for making employment decisions... For purposes of exemption (c), this type of investigation does not constitute a ‘law enforcement misconduct investigation’.” Based on the City’s response, it is unclear how the withheld records, constitute one of the core categories of personnel information that is useful in making employment decisions regarding an employee. Further, it is not clear how the records, in their entirety, contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional 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. The City must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential

Steven Kerrigan SPR24/1889 Page 6 July 16, 2024 investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its June 25th response, under Exemption (f), the City indicated, “[t]he subject investigation is not an internal affairs investigation by the MPD. Rather, it is a workplace investigation conducted by a third-party investigator through the City’s Human Resources Department with respect to particular alleged conduct and certain City policies addressing harassment. Exemption (f) applies because the public release of the names of a complainant or witness in the redacted e-mails would serve to prejudice the ability of the City to conduct such workplace investigations and disclosure of identifying information would not be in the public interest.” In its July 12th response, the City explained “Exemption (f) also applies because the public release of names of a complainant or witness would serve to prejudice the ability of the City to conduct such workplace investigations and disclosure of identifying information would not be in the public interest. . . .There would be no clear way to remove identifying information from records given that individuals are identified in the public records request.” Upon review, it is unclear how the records, in their entirety, can be withheld under Exemption (f). The City did not provide adequate supporting information to demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). In addition, it is not clear from the City’s response, how the records cannot be redacted to preserve the confidentiality of complainants and voluntary witnesses. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed

Steven Kerrigan SPR24/1889 Page 7 July 16, 2024 and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The City must clarify these matters. Further, I find the City must identify the records in its possession that are responsive to the request. To deny access to a record or portion of a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the City must identify the records it withheld under Exemptions (c) and (f). Conclusion Accordingly, the City is ordered to provide Mr. Priest with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: David Priest