Before us is the second phase of an ongoing endeavor by the Worcester Telegram & Gazette Corporation (the newspaper) to obtain access to a Worcester police department internal affairs file pursuant to the public records law, G. L. c. 66, § 10. See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester,
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. Accordingly, we agree with the judge’s decision, except as it authorizes release of a memorandum from the chief of police of Worcester (chief) to Officer
Background. 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. In Worcester I, supra, the Supreme Judicial Court observed that “allowing the [city] to decide unilaterally, without any oversight, what documents are subject to disclosure and what documents are exempt is wholly inconsistent with the purpose of G. L. c. 66, § 10.” Id. at 385. The court upheld an order permitting access to the disputed “public rеcords” 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.” Ibid., quoting from Globe Newspaper Co. v. Police Commr. of Boston,
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 judgmеnt. On appeal by the city, a single justice of this court stayed the judgment and reported the case for decision by a panel. See Mass.R.A.P. 5, as amended,
1. The public records law. The primary purpose of G. L. c. 66, § 10, is to give the public broad access to governmental records. See Globe Newspaper Co. v. Boston Retirement Bd.,
The city contends that all the material in the Wilder file is categorically exempt “personnel [file] or information” because it is part of a disciplinary report. See Wakefield Teachers Assn. v. School Comm. of Wakefield,
The newspaper, on the other hand, contends that all material in the Wilder file should be subject to disclosure because none is the type of routine personnel information that the categorical exemption for “personnel [file] or information” is intended to encompass. To buttress its argument the newspaper asserts that the public nature of the office and the awesome powers exercised by police create a compelling need for public oversight and review of a police department’s internal investigations. See Rotkiewicz v. Sadowsky,
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),
While exempting “personnel [file] or information” from the broad definition of “public record,” the statute does not define “personnel [file] or information.” Decisions suggest that the term is neither rigid nor precise and thаt the determination is case-specific. “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 categоries 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.’ ” Id. at 798 (citation and footnote omitted). The custodian’s designation of materials as “personnel [file] or information” is not dispositive of the point any more than the custodian’s placement of the
2. The Wilder file. The Wilder file materials fall into three broad groups. Group I consists of exchanges between the city and the complainant Wilder or his attorney. These include the complaint itself, a notice of claim under the tort claims act, and letters from the chief to Wilder advising of the start of the internal affairs investigation and then of its results.
The Group I and Group II documents do not even arguably fall within any accepted interpretation of the term “personnel [file] or information.” These materials do not include Tarckini’s employment application, any internal evaluations, payroll records, injury reports or performance assessments. Nor do they include information about his education and qualifications for emplоyment. See Wakefield,
Group III presents a closer question. The officers’ reports, the witness interview summaries, and the internal affairs report itself clearly bear on the ultimate decision by the chief to discipline or to exonerate Officer Tarckini based upon the investigation. However, that these documents bear upon such decisions does not make their essential nature or character “personnel [file] or information.” Rather, their essential nature and character derive from their function in the internal affairs process.
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 оf 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. The internal affairs procedure fosters the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the deрartment has the integrity to discipline itself.
We reject the city’s contention that, viewed as a whole, the entire internal affairs file is exempt “personnel [file] or information” because it is a “disciplinary report” relative to a specific complaint about a specific police officer’s actions. See Wakefield,
The formalized nature and uniquе 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.” Id. at 792-793.
Standing on different footing, and more like the disciplinary report in Wakefield, is the September 10, 1999, memorandum from the chief to Officer Tarckini detailing the findings of the internal affairs investigation and the conclusion that no disciplinary action was to be taken. The document is a notice from the disciplining authority to the particular employee advising of the disciplinary decision (that disciplinary action was not warranted). The nature and character of this document makes it part of “the core category] of personnel information that [is] useful in making employment decisions regarding the employee.” Wakefield,
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 complainаnt 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 chiefs 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 а public record any more than it makes the letter to Wilder’s attorney exempt “personnel [file] or information.” The exemption for “personnel [file] or information” is not dependent upon whether the same information may be available, or discernible, through alternative sources. Rather, the nature and character of the document determines whether it is “personnel [file] or information.” See Worcester I,
We need not dwell upon the city’s alternative contention that if the Wilder file materials are to be released, then the proper names and other identifying information of the complainant, the witnesses, and police officers (both those investigating and the subject of investigation) should be redacted. The city has emphasized that the sole issue on appeal is the applicability of the “personnel [file] or information” exemption. See Globe
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. See Bougas v. Chief of Police of Lexington,
So ordered.
Notes
In a separate proceeding in which the newspaper sought release of 111 internal affairs files covering the years 1997 and 1998, the parties entered a stipulation agreeing to be governed by the ruling in this case. Our decision governs only the Wilder file. As explained in Worcester I, “the applicability of [Wakefield Teachers Assn. v. School Comm. of Wakefield,
“[General Laws] c. 4, § 7, Twenty-sixth (c), creates two categories of records exempt from public disclosure: first ‘personnel and medical files or information’ and second ‘other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.’ ” Wakefield,
General Laws c. 4, § 7, Twenty-sixth (f), exempts “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 оf effective law enforcement that such disclosure would not be in the public interest.” See Globe Newspaper Co. v. Police Commr. of Boston, 419 Mass, at 862.
We consider this last letter in greater detail in our discussion of Group in, infra. While advising Wilder of the results of the investigation, the letter is not a disciplinary report within the meaning of Wakefield.
“Policy and Procedure No. 500” of the Worcester police department, governing its internal affairs division, as effective February 28, 2002, provides in pertinent part: “The internal affairs function is importаnt for the maintenance of professional conduct in a law enforcement agency. The
“A proper relationship between the police and the citizens of Worcester, fostered by trust and confidence, is essential to law enforcement. This system of complaint and disciplinary procedure not only subjects officers to corrective action when acting improperly, but also protects them from unwarranted criticism when discharging their duties properly.”
In Wakefield, the superintendent was both the investigating and disciplining authority. He compiled all the information, conducted the interviews and is
We recognize that there is good reason to encourage individual citizens and police to be cooperative, forthright and candid in their dealings with investigators. See Bougas v. Chief of Police of Lexington,
Although the nature and character of the document rather than its location are determinative, we attach some relevance to the fact that this memorandum will likely become part of Tarckini’s personnel filе. Policy and Procedure No. 500, see note 6, supra, provides: “All complaints, as well as all information gathered in the course of an Internal Affairs Investigation, with the exception
The fact that an investigation has concluded does not necessarily destroy the investigatory exemption. “[I]f an agency’s investigatory files were obtainable without limitation after the investigation was concluded, future law enforcement efforts by the agency could be seriously hindered. Even materials relating to an inactive investigation may require confidentiality in order to convince citizens that they may safely confide in law enforcement officials.” Bougas v. Chief of Police of Lexington,
The Fair Information Practices Act (FIPA), G. L. c. 66A, which requires holders of private information to send notice to data subjects prior to release оf such information, does not apply to cities and towns. A city is not an “agency” and thus not a “holder” within the meaning of FIPA. See G. L. c. 66A, §§ 1, 2(k); Torres v. Attorney Gen.,
We have considered and rejected the city’s contention that the judgment should be reversed for failure to comply with the Rules of Civil Procedure. The judge properly considered the parties’ respective motions as cross motions for summary judgment upon an issue of law on which the material facts were not in dispute.