The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofRecords March 9, 2015 SPR141737 Mr. Daniel J. Sheridan, Esq. Assistant Deputy Superintendent/Legal Counsel Office of the Berkshire County Sheriff 487 Cheshire Road Pittsfield, MA 01201 Dear Attorney Sheridan: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Office of the Berkshire County Sheriff (Sheriff's Office) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Wallack requested copies of records regarding the arrest of a Deputy Sheriff. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (a)--COR/ The Sheriff's Office provided responsive records, withholding information it deemed exempt from disclosure under the Public Records Law as Criminal Offender Record Information (CORI). G. L. c. 4, § 7 (26)(a); G. L. c. 6, § 167. Exemption (a), the statutory exemption, allows for the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre Mr. Daniel J. Sheridan, Esq. Page Two March 9, 2015 SPR14/737 G. L. c. 4, § 7(26)(a) A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language of the exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). A government record custodian may withhold a record as CORI if it is a record compiled by a law enforcement agency/police department concerning an identifiable individual and relates to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. The Sheriff's Office has withheld the arrest report as CORI by statute as a record created as the result of initiation of a criminal proceeding. See G. L. c. 6, § 167. The Department of Criminal Justice Information Services (DCJIS) has previously defined the "initiation of criminal proceedings" as "the point when a criminal investigation is sufficiently complete that the investigating officers take action toward bringing a specific suspect to court." I find that the requested arrest report falls within the definition of CORI. Accordingly, it is the finding of this office that the Sheriff's Office acted appropriately in withholding the requested record as CORI. Exemption (c) -personnel The Sheriff's Office is withholding a disciplinary memorandum concerning the subject of the record pursuant to Exemption (c) of the Public Records Law. Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c) Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the first clause, requiring an objective analysis, is relevant to this determination. Personnel information which is of a personal nature and which relates to a specifically named individual is absolutely exempt. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co., 388 Mass. at 438. The Supreme Judicial Court (Court) has held that personnel information which is "useful in making employment decisions regarding an employee" is sufficiently personal and may be Mr. Daniel J. Sheridan, Esq. Page Three March 9, 2015 SPR14/737 withheld pursuant to the first clause of exemption (c). Wakefield Teacher's Ass'n v. School Comm. of Wakefield, 431 Mass. 792, 798 (2000). The Court defined those records which may be withheld as personnel information to include, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee." Wakefield Teacher's Ass'n, 431 Mass. at 798 (emphasis added). In a 2003 Appeals Court decision the Court explained that investigation materials of law enforcement personnel are different than information typically included in the public records exemption for "personnel [file] or information" of other public employees. See Worcester Telegram & Gazette Corp. v. Chief of Police efWorcester, 58 Mass. App. Ct. 1 (2003). The Court reasoned that openness in a police internal affairs investigatory process, facilitated by the release of the relevant documents, was necessary to foster the public trust in law enforcement. Id., 58 Mass. App. Ct. at 7-8. Moreover, the Court held that officers' reports, witness interview summaries, and the internal affairs report were not part of a "personnel file or information" as these documents relate to the workings and determinations of the internal affairs process whose quintessential purpose is to inspire public confidence. Worcester Telegram & Gazette Corp., 58 Mass. App. Ct. at 7. The Appeals Court also held, however, that any memoranda from the investigating authority, issued directly to the investigated officer, detailing the findings of the investigation and conclusions that were reached, may be withheld under Exemption (c). The memoranda was within the core category of personnel information useful in making employment decisions regarding the employee, and was exempt from disclosure pursuant to the first clause of Exemption (c) as part of a "personnel file or information." Worcester Telegram & Gazette ~.,58 Mass. App. Ct. at 16, 17. I find that the responsive disciplinary memorandum is a personnel record and may be properly withheld by the Sheriff's Office under the first clause of Exemption (c). Accordingly, whereas the Sheriff's Office has provided respo ive records with the exception of those properly withheld, I will consider this a nis rat' e appeal closed. Supervisor of Records cc: Mr. Todd Wallack