George and Jen Burden v. Lunenburg, Town of - Police Department (SPR 20250378)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 13, 2025 SPR25/0378 Sean Zrate Acting Lieutenant Lunenburg Police Department 655 Massachusetts Avenue Lunenburg, MA 01462 Dear Lieutenant Zrate: I have received the petition of Jen and George Burden appealing the response of the Lunenburg 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 January 25, 2025, Mr. and Mrs. Burden requested the following records for the dates January 23, 2025 and January 24, 2025: [1] [A]ny and all documents regarding [an identified individual] reporting incidents regarding [an identified individual or any member of his family[;] [2] [A]ny and all documents regarding any resident of Cortland Circle, Alder Way, Willow Circle or Flat Hill Road reporting incidents regarding [an identified individual] or any member of his family[.] The Department provided two responses on February 3, 2025. Unsatisfied with the responses, Mr. and Mrs. Burden petitioned this office and this appeal, SPR25/0378, 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. 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

Sean Zrate SPR25/0378 Page 2 February 13, 2025 Att’y 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. 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. The Department’s February 3rd Response In its first February 3, 2025 response, the Department informed Mr. and Mrs. Burden that it possessed no responsive records for the date January 23, 2025. In its subsequent February 3, 2025 response, the Department provided Mr. and Mrs. Burden with a call log dated January 24, 2025, redacted pursuant to Exemption (c) of the Public Records Law. The Department further informed Mr. and Mrs. Burden that it was withholding a police report generated on January 24, 2025 pursuant to G. L. c. 167 – 178B, as it operates through Exemption (a) of the Public Records Law. Current Appeal In their February 7, 2025 petition to this office, Mr. and Mrs. Burden object to the redaction and withholding of responsive records, and allege that the Department failed to respond to their request as it relates to the date January 23, 2025. In a February 7, 2025 email communication to this office, the Department confirmed that it had responded to the request as it relates to the date January 23, 2025, and that the Department possessed no responsive records for that date. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Sean Zrate SPR25/0378 Page 3 February 13, 2025 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its February 3, 2025 response, the Department stated: … G.L. 167-178B, and related regulations, requires that criminal justice agencies withhold any records and data in any communicable form compiled by a Massachusetts Criminal Justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pretrial

Sean Zrate SPR25/0378 Page 4 February 13, 2025 proceeding, other judicial proceedings, previous hearing conducted pursuant to section 58A of Chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted that recorded as the result of initiation of criminal proceedings or any consequent proceedings related thereto. CORI shall not include information concerning any offenses which are not punishable by incarceration. Based on the Department’s response, it is unclear how the responsive record constitutes CORI as described in G. L. c. 6, § 167. Specifically, it is unclear how a police report constitutes “… information recorded in criminal proceedings that are not dismissed before arraignment.” Consequently, the Department has not met its burden to withhold the requested record, in its entirety, under the CORI Act. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 n.18 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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 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.

Sean Zrate SPR25/0378 Page 5 February 13, 2025 In its February 3, 2025 response, the Department stated, “[t]he above listed logs have been redacted to keep private information secure.” Based on the Department’s response, I find that it may permissibly withhold social security numbers from disclosure under Exemption (c). However, it is not clear how the remainder of the redacted information is exempt under Exemption (c) of the Public Records Law. Specifically, it is not clear how the remainder of the redacted information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether the redacted information is available from other sources. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. and Mrs. Burden 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. Mr. and Mrs. Burden 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: Jen and George Burden