PAX Centurion - November / December 2015

www.bppa.org PAX CENTURION • November/December 2015 • Page 27 Police Departments and the Public Records Law Legal Notes: Nicholas Pollard, Esq. Sandulli Grace P.C., Counsel to Members of the Boston Police Patrolmen’s Association G eneral Law Chapter 66, Section 10, the Massachusetts Public Records Law, requires every person having custody of any public record, at a reasonable time and without unreasonable delay, to permit any portion of the record to be examined by any person and to provide a copy of the record for a reasonable fee. The key question that often arises in departments statewide is, “what is a public record?” The term is defined broadly, essentially including all forms of information created or maintained by any public entity, including books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations or other documentary materials or data. A record is presumed to be public unless its keeper can prove with specificity that it falls under one of several exemptions. Several of these exemptions are especially pertinent to police officers. One such category of exempt records are personnel files. This exemption includes, minimally, employment applications, work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee. It’s worth noting, however, that simply labeling a document as “personnel file information” or placing a document into a personnel file is not enough to make the document exempt from public disclosure. Significantly, this exemption does not “protect” internal affairs investigatory materials from being disclosed; it merely exempts actual notices of termination, suspension, etc., not the investigatory materials that formed the basis of the termination, suspension, etc. Because this exemption, like all of the exemptions, is read quite narrowly, it is unlikely to be successful in an attempt to argue that a Department record is not a public record. There is generally a stronger set of protection for documents falling under the “investigatory materials” exemption. Documents falling under the exemption are those that are necessarily compiled out of the public view, the disclosure of which would be likely to prejudice the possibility of effective law enforcement. Naturally, whether a document falls under this exemption will depend on the particulars of any given case; if a criminal investigation is high profile, and various details of the investigation have been leaked to the public, documents relating to that investigation are less likely to be exempt from a public records request than those stemming from a case that has remained completely out of the press, or one that deals with extremely sensitive allegations. Finally, another exemption that may come into play is the personal privacy exemption. This is a catch-all category that exempts records which relate to a specifically named individual and the disclosure of which might constitute an unwarranted invasion of personal privacy. Whether a document falls within this category of exemption depends upon a balancing of the public interest at stake and the probability of an “unwarranted” invasion of personal privacy that would result from disclosure. This exemption would likely include witness interviews that reveal extremely sensitive personal information about an interviewee, document, but would be unlikely to include IA investigatory materials due to what the courts consider to be a heavy public interest in favor of disclosure. Again, though, the facts and circumstances surrounding a given document will be the determining factors in determining whether that document falls under the privacy exemption. Overall, given the fairly stringent standard to prove that a document is exempt from discovery under the Public Records Law, it is safe to assume that if you are creating a document in your official capacity, it is subject to public disclosure. By Bill Carroll See Sports Trivia Answers on page 33 1. What NFL team has their logo on only one side of their helmet? 2. Who was the last non-quarterback to win the NFL MVPAward? 3. Who is the only player to be enshrined in theAmerican Football Hall of Fame in Canton, Ohio and the Canadian Football League Hall of Fame? 4. What state has produced six NFL quarterbacks in the Pro Football Hall of Fame? 5. Who was the first goalie to score a goal in an NHL game? 6. What four Naismith Basketball Hall of Fame players were also inducted as head coaches? 7. Dodgers lefty Sandy Koufax threw four no-hitters in his career, who caught two of them? 8. What major leaguer played in sevenWorld Series during the 1960’s? 9. Of all uniform numbers retired in Major League Baseball whose is the highest? 10. What single digit numbers have not been retired by the NewYorkYankees?