Ronald G. Guilmette v. Amesbury, City of - City Clerk (SPR 20243224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2024 SPR24/3224 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 SPR24/3224 Page 2 December 12, 2024 Previous Appeals This request was the subject of previous appeals. See SPR24/0308 Determination of the Supervisor of Records (February 15, 2024) and SPR24/1814 Determination of the Supervisor of Records (July 5, 2024). In my July 5th determination, I found that it was unclear what statute the City was claiming to withhold responsive records pursuant to Exemption (a) of the Public Records Law. Further, I found it was not clear whether responsive records were related to a law enforcement misconduct investigation, or could be withheld in their entirety under Exemption (c). The City provided a response on November 1, 2024. Unsatisfied with the response, Mr. Guilmette petitioned this office and this appeal, SPR24/3224, 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. 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 City’s November 1st Response In its November 1, 2024 response, the City responded as follows: Item 1 The City provided Mr. Guilmette with records responsive to this request, redacted under Exemptions (a) and (c) of the Public Records Law. Item 2 The City provided Mr. Guilmette with records responsive to this request, redacted under Exemption (a) of the Public Records Law.

Jennifer Smith SPR24/3224 Page 3 December 12, 2024 Item 3 The City withheld records responsive to this request under Exemption (c) of the Public Records Law. Item 4 The City informed Mr. Guilmette that it had no records in its possession responsive to Item 4. Current Appeal In his November 27, 2024 petition to this office, Mr. Guilmette alleged that the records provided by the City were “incomplete,” and requested that “… the city provide all documents associated instead of selectively releasing public documents.” Mr. Guilmette further stated that “[n]o investigative documents or emails have been provided … they are required to direct me to the agency which has said investigative documents if they are unable to provide.” 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (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.

Jennifer Smith SPR24/3224 Page 4 December 12, 2024 In its November 1st response, the City relies upon G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates ... G. L. c. 41, § 97D. In its response, the City states: In the present instance, the City possesses responsive records that would come within the purview of this statute, namely a letter responsive to Item 1 of the request and an investigation report responsive to Item 2, and has therefore redacted each of them accordingly. The letter was previously provided with additional redactions, but the City has provided a less-redacted version in this instance while asserting that G.L. c. 41, § 97D, prohibits disclosure of an unredacted version. Based on the City’s response, it is unclear how the records responsive to Items 1 and 2 fall within the type of records contemplated in G. L. c. 41, § 97D. The City merely cites the statute without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The City must clarify this matter. Exemption (c) Exemption (c) permits the withholding of: 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

Jennifer Smith SPR24/3224 Page 5 December 12, 2024 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 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 November 1st response, the City states: With respect to Exemption (c), the City is providing all responsive records that are in any way related to any law enforcement misconduct investigations. The City is providing an additional letter, which was provided to the Newburyport Daily News, which the City has redacted consistent with Exemption (c), and which does not relate to a misconduct investigation. As the City has previously asserted, the allegations made in the letter marked “Ltr #2” refer to a misunderstanding with respect to timekeeping in the Department, which misunderstanding was subsequently explored, clarified, and resolved. To the extent that the letter would characterize the misunderstanding as allegations of misconduct, the City would dispute that characterization and assert that it does not, standing alone, render Exemption (c) inapplicable. Rather, Exemption (c) nevertheless applies to the individual named in “Ltr #2,” who has an interest in his reputation that would be injured by the release of a letter accusing him of misconduct. The name of the individual identified in the letter has therefore been redacted to protect him from personal embarrassment, as is permitted by Exemption (c).

Jennifer Smith SPR24/3224 Page 6 December 12, 2024 The text of 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, 11-12 (2024) (finding that the privacy exemption cannot justify the withholding of records related to the investigation of a police shooting by a district attorney). This is true regardless of whether the investigation ends with a finding of police misconduct. Id. Based upon the update to Exemption (c) where the amendment states that “this subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how the records responsive to Item 1 can be redacted under Exemption (c). In its response, the City further states: Finally, the City is withholding certain records responsive to Item 3 of your Request, namely a candidate evaluation and follow-up report, as exempt personnel information pursuant to Exemption (c) … The City has carefully considered the personnel information requested in light of Exemption (c), and considered the factors set forth in the PETA case, cited above. After this careful, individualized assessment, the City has determined that the Badge Quest candidate evaluation of Chief Bailey and follow-up report pertaining to same contain confidential personnel information which implicates the privacy rights of Chief Bailey pursuant to the provisions of Exemption (c). To the extent that the records responsive to Item 3 constitute one of the core categories of personnel information, useful in making employment decisions regarding a particular employee, I find that such information may be withheld. However, it is not clear how the records may be withheld in their entirety. 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 v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify this matter. Additionally, based on the City’s response, it is not clear whether the information contained in the withheld records is available from other sources or constitutes intimate details of a highly personal nature. It is also not clear how disclosure would result in personal embarrassment to an individual of normal sensibilities. The City must clarify these matters. Further, it is unclear whether the City possesses additional records responsive to Mr. Guilmette’s request. Specifically, the City must clarify whether it possesses additional communications or investigative reports responsive to Items 2 and 3. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

Jennifer Smith SPR24/3224 Page 7 December 12, 2024 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 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. Mr. Guilmette may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ronald G. Guilmette