Quinn O’Sullivan v. Natick, Town of - Police Department (SPR 20242860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2024 SPR24/2860 Lieutenant Leo Fitzpatrick Records Access Officer Natick Police Department 20 East Central Street Natick, MA 01760 Dear Lieutenant Fitzpatrick: I have received the petition of Quinn O’Sullivan, Esq., of D’Ambrosio LLP, appealing the response of the Natick Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 2, 2024, Attorney O’Sullivan requested a copy of accident report # 24-504-AC and “… all other records kept by the Department pertaining to the accident and any investigation that was performed.” The Department provided a response on October 7, 2024. Unsatisfied with the response, Attorney O’Sullivan petitioned this office and this appeal, SPR24/2860, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(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 agency or municipality 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lieutenant Leo Fitzpatrick SPR24/2860 Page 2 October 31, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney O’Sullivan’s interest in obtaining the records shall have no bearing on the public nature of the records. The Department’s October 7th Response In its October 7, 2024 response, the Department provided Attorney O’Sullivan with a copy of the requested report, justifying the redactions therein under Exemption (c) and Exemption (f) of the Public Records Law. Current Appeal In his October 16, 2024 petition to this office, Attorney O’Sullivan objects to the Department’s response and seeks “… the names and contact information of the witnesses to the accident in order to obtain necessary and relevant information regarding the accident while still fresh in their minds.” Attorney O’Sullivan argues that the Department has misinterpreted the categories of information protected by Exemption (c) of the Public Records Law, and that policy considerations do not support the withholding of responsive records under Exemption (f) of the Public Records Law. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391

Lieutenant Leo Fitzpatrick SPR24/2860 Page 3 October 31, 2024 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its October 7th response, the Department, citing Exemption (c), states the following: All personal information such as birth date and license # have been removed per Exemption C- Privacy “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. Section 1 of Chapter 93H defines Personal Information as a resident’s first and last name or first initial and last name in combination with any 1 or more of the following data elements that relate to such resident....(b)Driver’s license number or state-issued identification card number…” I find that the Department may permissibly redact the license numbers of the parties involved in the underlying motor vehicle incident, pursuant to Exemption (c). However, based on the Department’s response, it is not clear how an individual’s date of birth constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Department must clarify these matters. Exemption (f) Exemption (f) permits the withholding of: 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 of effective law enforcement that such disclosure would not be in the public interest

Lieutenant Leo Fitzpatrick SPR24/2860 Page 4 October 31, 2024 G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at 290 n.18; Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). The Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438. In its October 7th response, the Department, citing Exemption (f), states the following: The witness information has been removed per Exemption F -The investigatory Exemption states “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which material would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. .... 3. Confidentiality: information may be withheld to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation.” In the responsive record provided to Attorney O’Sullivan, the Department redacted the names and addresses of two witnesses to the underlying motor vehicle incident. Where this information, if disclosed, would create a grave risk of directly or indirectly identifying said voluntary witnesses, I find that the Department has met its burden to justify these redactions under Exemption (f). Further, the Department’s justification for certain redactions remains unclear. For example, it is not clear under which exemption the Department has redacted a sentence from the

Lieutenant Leo Fitzpatrick SPR24/2860 Page 5 October 31, 2024 “Crash Narrative” section of the responsive record. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). Therefore, the Department must identify the nature of the information redacted under Exemptions (c) and (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Attorney O’Sullivan with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Attorney O’Sullivan may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Quinn O’Sullivan, Esq.