On an appeal by a city from a Superior Court decision that required the release to a newspaper's legal counsel, pursuant to G. L. c. 66, s. 10, as public records, of the entire, unredacted contents of a police department file of an internal investigation into complaints lodged by an individual who had alleged police misconduct, excepting only documents containing information protected as criminal offender record information by G. L. c. 6, s. 167 et seq., this court agreed with the judge's decision, except as it authorized release of a memorandum from the city's chief of police to the. The city of Worcester appeals from a judgment requiring the release, as public records, of the entire, unredacted contents of the Wilder file, excepting only documents containing information protected as criminal offender record information (CORI) by G. L. c. 6, §§ 167 et seq. For the reasons that follow, we conclude that materials in an internal affairs investigation are different in kind from the ordinary evaluations, performance assessments and disciplinary determinations encompassed in the public records exemption for "personnel [file] or information," the sole exemption at issue.
Earlier skirmishes in the newspaper's attempt to obtain the Wilder file focused upon the method for determining whether the materials sought were exempt from public disclosure. The court upheld an order permitting access to the disputed "public records" under a protective order so that counsel might "particularize their arguments to the judge, citing specific materials, or portions of materials, that are exempt or subject to disclosure.".
After review of the disputed "public records" pursuant to the protective order, the parties filed cross motions for summary judgment. A judge of the Superior Court reviewed the contested documents, heard arguments, and entered the challenged judgment.
On appeal by the city, a single justice of this court stayed the judgment and reported the case for decision by a panel. Notwithstanding the presumption favoring disclosure, the statute provides a number of specific exemptions from the definition of "public records.".
Materials falling within that category are absolutely exempt without need to consider the impact of disclosure upon the privacy rights of a specifically named individual. The city posits that because internal affairs is an investigatory process that leads to officer discipline, documents and reports in an internal affairs file are "disciplinary documentation" and "disciplinary reports" within the ambit of Wakefield, supra at 798. Prescinding from the extreme positions offered, we view the issue more narrowly, whether as a matter of statutory interpretation the particular material in the Wilder file falls within the sole exemption claimed, under G. L. c. 4, § 7, Twenty-sixth (c),. [Note 4] However cogent the parties' arguments might be as a matter of competing policy choices, the Legislature has determined what records should be public and what exempt from disclosure.
"While the precise contours of the legislative term 'personnel [file] or information' may require case-by-case articulation, it includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee. These constitute the core categories of personnel information that are 'useful in making employment decisions regarding an employee.'.
It would distort the plain statutory language to conclude that disciplinary reports are anything but 'personnel [file] or information.'. [Note 5] Group II consists of police reports, incident reports, cards reflecting police details and rosters, arrest logs, a commercial phone book listing, and a computer printout from a hockey league website.
These materials do not include Tarckini's employment application, any internal evaluations, payroll records, injury reports or performance assessments. Group II consists of documents generated independently of the internal affairs investigation -- some under different protocols for routine recording of police business, others by entities other than the city, its employees, or the complainant. The mere placement of these materials in an internal affairs file does not make them disciplinary documentation or promotion, demotion, or termination information.
However, that these documents bear upon such decisions does not make their essential nature or character "personnel [file] or information.". An internal affairs investigation is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment.
Unlike other evaluations and assessments, the internal affairs process exists specifically to address complaints of police corruption (theft, bribery, acceptance of gratuities), misconduct (verbal and physical abuse, unlawful arrest, harassment), and other criminal acts that would undermine the relationship of trust and confidence between the police and the citizenry that is essential to law enforcement. internal investigation of its officer's actions promotes the core value of trust between citizens and police essential to law enforcement and the protection of constitutional rights.
Disciplinary action is but one possible outcome; exoneration and protection of the officer and the department from unwarranted criticism is another. Such a broad construction ignores the essential directive that the legislative term "personnel [file] or information" derives its meaning from the nature or character of the document, not from its label or its repository.
The formalized nature and unique purpose of the internal affairs citizen complaint process serve to distinguish this case from Wakefield, supra, in which the court determined a disciplinary decision and report of a school superintendent regarding a public school teacher to be exempt "personnel [file] or information.". [Note 8] The nature and character of these materials, and the context in which they arise, take them beyond what the legislature contemplated when exempting "personnel [file] or information.". We acknowledge that, at first glance, the distinction drawn between the records seems an unlikely splitting of hairs: the memorandum from the chief to Officer Tarckini constitutes exempt "personnel [file] or information," while documents from the internal affairs investigation proper, including the interviews, the reports, the conclusions and recommendations, and the documenting of its results to the complainant are not so exempt. However, when considered in light of the purpose of the public records law, it is not at all illogical that the Legislature would intend the bricks and mortar of the investigation and the documenting of its results to the complainant to fall outside the exemption for "personnel [file] or information," but would intend the actual order and notice of disciplinary action issued as a personnel matter from the chief to the target of the disciplinary investigation to be exempt.
That the information contained in the chief's memorandum to Officer Tarckini is essentially identical to that contained in the letter to Wilder's attorney does not make the memorandum to Officer Tarckini a public record any more than it makes the letter to Wilder's attorney exempt "personnel [file] or information.". The city has emphasized that the sole issue on appeal is the applicability of the "personnel [file] or information" exemption. Accordingly, we do not consider the privacy exemption or interests protected by the investigatory exemption, to encourage "individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.".
With the exception noted, we conclude that the Superior Court judge did not commit any error of law in treating the material in the Wilder file as a public record. [Note 12] The city failed in its burden of proving, with specificity, the applicability of the "personnel [file] or information" exemption. We reverse so much of the judgment as provides for the public release of the September 10, 1999, memorandum from the chief of police of Worcester to Officer Tarckini (denoted document number 33 in the record).
“It’s a pretty easy process,” said Lindsey Lague, public information officer in Providence, which releases a large scope of data daily on its website. Users can sort arrests by many different categories, including race and ethnicity, as well as, by using a visualization tool, create charts and graphs allowing one to more easily spot trends over time.
“It makes everybody’s life a little easier,” said Lague, noting that part of her job years ago was to tally numbers for public release. Silverman, whose organization defends and promotes public access to government, said he would expect Worcester, at a minimum, to be posting its arrest records online.
Leominster and Fitchburg, the county’s largest cities after Worcester, post logs detailing incidents and arrests online monthly and weekly, respectively. The Hardwick/New Braintree police department, which serves two of the smallest towns in the county, posts incident logs online weekly. Murtha said the department is looking into software that would enable people to fill out a request online, instead of through the mail, and is also planning to reopen the window for limited hours, likely 10 to 11:30 a.m.
Chief Steven M. Sargent also provides up-to-date violent crime and property statistics in dozens of local speaking engagements throughout the year, Murtha said. The department also regularly publishes news releases on Facebook and its website, often focusing on violent crime and successful drug and gun arrests.
Judge Janet Kenton-Walker, who ruled in the newspaper’s favor this spring, took under advisement a request the T&G made to award punitive damages and issue a permanent injunction it argued was necessary to ensure future adherence to the law. Pyle said Kenton-Walker’s June decision properly recognized the “strained” nature of the city’s argument, and that failing to impose damages would only incentivize other municipalities to make similarly bad claims to keep documents secret. She reiterated that the city believes its argument was made in good faith, saying it has an obligation not only to the Public Records Law, but also to defend police officers and taxpayers against lawsuits. Quinn argued against a permanent injunction, asserting the judge did not have the authority to issue one and that doing so would unfairly restrict the city’s discretion in responding to record requests. The T&G has now successfully sued the city three times in the past 20 years regarding its failure to produce police records, Pyle noted, arguing that administrators cannot be trusted to follow the law. Pyle noted that Kenton-Walker, in her decision, found the city improperly blacked out the conclusions of probes into police misconduct in violation of a state Appeals Court ruling it lost to the T&G in 2003.
The 2016 update to the state’s Public Records Law created a presumption in favor of awarding attorney’s fees if the requester obtains judicial relief.
The June 2 decision from Worcester Superior Court Judge Janet Kenton-Walker found that the city had wrongly withheld records of police misconduct investigations from the Telegram & Gazette for the last three years, the newspaper reported Friday. The city was wrong in arguing it could not disclose the records of Worcester police officers who are being sued in civil rights cases, the judge wrote.
In a 35-page ruling issued last Wednesday, Worcester Superior Court Judge Janet Kenton-Walker agreed with the T&G that the city is not allowed to withhold records of the police department’s investigations into alleged misconduct just because the officers are being sued in civil rights cases. David Nordman, executive editor of the T&G, said that the newspaper believes in transparency and the public’s right to know how the government, including the Police Department, is operating and spending money. However, shortly after the T&G published an article about the lawyer’s allegations, the city reversed course and returned a check the newspaper had provided for parts of the records.
The lawyer, Janice Thompson, also testified she could not recall who specifically within the law department determined that the city’s claimed rationale for withholding the records applied. In her ruling, Kenton-Walker rebuked the city for its practice in recent years of blacking out the police chief’s findings and conclusions from the investigation reports that it did release. “The protective orders at issue here prohibit only the federal court plaintiffs, not the city and officer defendants, from disclosing the documents,” she noted. “The public has an interest in knowing such general information about a given officer’s incident history,” she wrote, citing as precedent the Appeals Court ruling from two decades ago that favored the T&G.
In oral arguments earlier this year, the T&G’s lawyer, Jeffrey J. Pyle of the Boston law firm Prince Lobel, argued that it would be illogical to shield the internal affairs records of officers who are being sued in court. Kenton-Walker ordered the city to provide the T&G’s lawyers — but not its staff — unredacted copies of all the materials in dispute for future arguments regarding which redactions can and cannot be made.
The Telegram & Gazette began what would become multi-year legal battle against the Worcester Police Department for access to internal affairs reports in 2018. Previous recipients of the FOI Award are The Bangor Daily News (2021); Hearst Connecticut Media Group (2020); the Hartford Courant (2019); Todd Wallack of The Boston Globe (2018); The Sun Journal in Lewiston, Maine (2017); Jenifer McKim of the New England Center for Investigative Reporting (2016); James W. Foley (posthumously), the war correspondent and New Hampshire native killed by the Islamic State (2015); Brent Curtis of the Rutland Herald in Vermont (2014); and Don Stacom of the Hartford Courant (2013).