In October, I wrote about how a UMass Lowell student was threatened by a campus police officer for video-recording him. Brendan Brown was recording the police respond to a fight outside an apartment when he was confronted by a police officer and told to “Shut that fucking thing off before I slap you.”
In case you missed the first post, you can check out the video below:
In early November, I reported that UMass Lowell Police Chief Randolph Brashears wrote to me that the officer in the video, Noberto Melendez, had been disciplined for his behavior. However, Chief Brashears did not say how Officer Melendez was disciplined. Because I did not believe that Chief Brashears was being sufficiently transparent, I filed a public records request with the police department asking for the internal affairs report, information about how Melendez was disciplined, and training and policy information about the campus police.
Later that month, I received a response to my request from Jack Giarusso, the Executive Director of Human Resources at UMass Lowell. In the letter (see the scans here and here; .jpg format), Giarusso said three things.
First, Giarusso agreed to release the internal affairs report, however, he said that I must pay the University a $245 fee for it. This is because, under the Massachusetts Public Records Law, government agencies can require individuals who request records to pay certain fees. The reason the fee is so high in this particular case is that the University must redact certain pieces private information from the report (information about witnesses) and they estimate the process will take about six hours. Personally, I think it’s outrageous that I’m expected to pay hundreds of dollars just to get photocopies of documents which are supposed to be public records, but that’s the way the law currently works.
Unfortunately, I can’t spare the money to get this report released at the moment. However, as an experiment, I decided to create a ChipIn widget. If you believe it’s important that this report is released to the public and are willing to invest money in it, you can pledge part or all of the fee using the Chipin Widget. If all of the money is raised (or at least most of it; I’m willing to use some of my own money), I will use it to obtain a copy of the report, scan it, and post the scans on the internet. If I don’t manage to raise enough money to get the report released within two weeks, all the money that has been raised will be refunded to the donors.
Next, Mr. Guarusso agreed to release the training and policy information. He said the University will provide these documents to me free of charge because there are only a few pages and no redaction is necessary. As soon as I get copies of these documents, I will scan and publish them.
Finally, Giarusso said that the University will not release any disciplinary information about Officer Melendez because he believes that it is exempt from disclosure under the “personnel” exemption to the public records law.
It’s true that there is a “personnel” exemption to the public records law for certain types of information about government employees in Massachusetts, however, I don’t believe that this exemption applies to disciplinary information about police officers. I tried to contact Giarusso by telephone to discuss this with him, but he told me has no understanding of the public records law and simply writes what his lawyers tell him to. He redirected me to Deirde Heatwole, General Counsel for the University of Massachusetts System.
Yesterday, I sent an email to Heatwole explaining why I do not believe the “personnel” exemption applies to police disciplinary information and asking her to release the information:
I recently filed a public records request with the University of Massachusetts Lowell in an attempt to get copies of several records related to an incident involving the campus police which occurred earlier this year. During the incident, UMass Lowell Police Officer Noberto Melendez threatened a student for video-recording him, saying “Shut that fucking thing off before I slap you.” According to UMass Lowell Police Chief Randolph Brashears, this incident resulted in an internal investigation into Officer Melendez’s behavior. Chief Brashears told me that allegations of misconduct were sustained against Officer Melendez and that he was subjected to disciplinary action, however, he would not say what kind of disciplinary action.
Because I was unsatisfied with this response, I sent a public records request to UMass Lowell seeking copies of the internal affairs report, records of the disciplinary action taken against Officer Melendez, and training and policy information. I received a response to this request from Jack Giarusso, Executive Director of Human Resources. Mr. Giarusso agreed to release the internal affairs report and training and policy information, however, he refused to release any disciplinary information about Officer Melendez. When I contacted Mr. Giarusso to discuss his refusal to release this information, he directed me to you.
Mr. Giarusso’s letter claims that “any information regarding any personnel decisions regarding Officer Melendez, including any disciplinary information, is exempt from disclosure under ch. 4, s. 7, cl. 27 (c) as ‘personnel’ information.”
While this statement may reflect the honest opinion of Mr. Giarusso and his legal advisers, it is false. The issue of whether or not disciplinary information about police officers falls under the “personnel” exemption has already been addressed by the judiciary in Massachusetts.
In a case heard by the Appeals Court (Worcester Telegram & Gazette Corporation vs. Chief of Police of Worcester & another. (AC 02-P-1632) 58 Mass. App. Ct. 1 (2003)), the Worcester Police Department refused to comply with a newspaper’s request to release internal affairs information about an officer who had been accused of misconduct by citing the “personnel” exemption. The Court “conclude[d] 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 reason the Appeals Court concluded that such information is not exempt “personnel” information is that the internal affairs process “is a formalized citizen complaint procedure, separate and independent from ordinary employment evaluation and assessment” with the primary purpose of “foster[ing] the public’s trust and confidence in the integrity of the police department, its employees, and its processes for investigating complaints because the department has the integrity to discipline itself.” The Court noted that “It would be odd, indeed, to shield from the light of public scrutiny as ‘personnel [file] or information’ the workings and determinations of a process whose quintessential purpose is to inspire public confidence.”
It was mentioned in the letter I received that disciplinary information regarding Officer Melendez “is not part of the internal affairs investigation file,” however, this is irrelevant. As the Appeals Court noted, “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.” Even if records of the disciplinary action taken against Officer Melendez were placed in a folder labeled “personnel information” rather than in the internal affairs file, this does not alter the “nature or character” of the information. This disciplinary information is still part of a ” formalized citizen complaint procedure” with the purpose of “foster[ing] the public’s trust and confidence in the integrity of the police department.”
It should be noted that there are certain types of documents containing disciplinary information about police officers that do fall under the “personnel” exemption. In the previously mentioned court case, the Appeals Court refused to release a memo to a police officer informing him that no disciplinary action would be taken against him. However, it is important to note that the Court did so because the memo was an “actual order and notice of disciplinary action issued as a personnel matter,” not simply because the memo contained disciplinary information. Other records containing the same information are available to members of the public who request them.
Because I disagree with Mr. Giarusso’s refusal to disclose disciplinary information about Officer Melendez related to his threat to slap a student for video-recording him, I am asking you to reconsider my request. I request that you provide me with a list of all documents in possession of the University containing this disciplinary information. I also request that you tell me which of these documents you believe to be public records and which you believe are exempt from the public records law.
If you believe that any of these documents are not public records, you are obligated to explain to me why. As Secretary of the Commonwealth William Galvin writes in his publication “A Guide to the Massachusetts Public Records Law,” a “denial [of a public records request] must include a citation to one of the statutory exemptions upon which the records custodian relies, and must explain why the exemption applies” (emphasis added). Galvin also writes that “If a records custodian claims an exemption and withholds a record, the records custodian has the burden of showing how the exemption applies to the record and why it should be withheld” (emphasis added). In other words, it is not enough to simply claim, as Mr. Giarusso did in his letter, that disciplinary information about UMass police officers is exempt “personnel” information. If the University wishes to withhold this information, a representative of the University must articulate specific facts about the records in question in order to explain how the exemption applies.
Please be aware that failure to appropriately respond to this letter in a timely manner will result in an appeal being filed with the Supervisor of Records and possibly other action.
I appreciate you taking time to read over and consider this letter. I look forward to hearing back from you soon.
When I get a response to the email, I’ll post an update.
Stay safe out there, cop blockers.