Shawn Wiley v. Danvers, Town of - Police Department (SPR 20250600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2025 SPR25/0600 James Lovell Chief of Police Danvers Police Department 120 Ash Street Danvers, MA 01923 Dear Chief Lovell: I have received the petition of Shawn Wiley appealing the response of the Danvers Police Department to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 24, 2024, Mr. Wiley requested the following: copies of all records, communications, and correspondence involving [identified individuals], and any other members of the Danvers Police Department or the Essex County District Attorney’s Office regarding any matter related to [identified individuals]. Specifically, I am requesting the following: Scope of Request Timeframe • From January 1, 2024, through December 24, 2024. 1. Emails, Phone Calls, Text Messages, and Other Correspondence: • All emails, phone call logs, text messages, or written correspondence exchanged between [identified individuals]. • Any correspondence or communications between [an identified individual], and any other members of the Danvers Police Department or Essex County District Attorney’s Office concerning the investigation of or actions related to [identified individuals]. 2. First Point of Contact: • Documentation or notes regarding the first point of contact between [identified individuals] in relation to the case, including the date, time, and context of the communication. 3. Meeting Notes and Phone Call Summaries: 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

Chief James Lovell SPR25/0600 Page 2 March 14, 2025 • Notes, summaries, or recordings of any phone calls or in-person meetings where [identified individuals], or other members of the Danvers Police or Essex DA’s Office discussed [an identified individual]’s case. 4. Investigation-Related Records: • Any internal emails, memos, or other records documenting discussions, decisions, or actions related to the case, including those addressing allegations, evidence provided, or witness accounts. 5. Collaborative Actions Taken: • Any communications or records documenting collaborative actions or strategies between the Danvers Police Department and Essex County District Attorney’s Office regarding the handling, investigation, or closure of [an identified individual]’s case. 6. Contextual Details of Communications: • Records reflecting the subject matter or context of any communications or interactions, such as emails or phone calls discussing investigative leads, evidence review, witness interviews, or prosecutorial decisions. Previous Appeal This request was the subject of a previous appeal. See SPR25/0075 Determination of the Supervisor of Records (January 21, 2025). In my January 21st determination, I found that it was unclear whether the Department provided a response. The Department responded on February 12, 2025. Unsatisfied with the response, Mr. Wiley petitioned this office and this appeal, SPR25/0600, 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.

Chief James Lovell SPR25/0600 Page 3 March 14, 2025 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 12th Response In its February 12, 2025 response, the Department provided responsive records and cited Exemptions (a) and (c) to withhold certain records and redact portions of the records, respectively. Additionally the Department cited the attorney-client privilege to redact pages of certain records. Current appeal In his appeal, Mr. Wiley claims that the redactions are improper and that there was no privilege log. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). 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. In its response, the Department cited the language of G. L. c. 41, § 97D, which provides in pertinent part:

Chief James Lovell SPR25/0600 Page 4 March 14, 2025 All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. Based on the Department’s response, it is unclear how the withheld records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. The Department must clarify. 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation.

Chief James Lovell SPR25/0600 Page 5 March 14, 2025 Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires 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 response the Department stated, The record you seek contains information that is highly private in nature. In order to balance the privacy interest at stake with the public’s right to know such information... The record you seek contains private, not widely disbursed, intimate personal and medical information relating to a member of the public. It is the reasonable judgement of the record keeper that disclosure of this private and intimate information would cause irreparable harm and embarrassment to a reasonable person. As such, the record is not subject to disclosure pursuant to Exemption (c) of the Public Records Law. To the extent that the records contain medical information that relates to a specifically named individual, I find the Department may permissibly redact such portions from the records under Exemption (c). However, based on the Department’s response, it is unclear what other information has been redacted or how the redacted information constitutes intimate details of a highly personal nature. It is additionally uncertain how disclosure would result in personal embarrassment to an individual of normal sensibilities or whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify. Further based on the Department’s response, it is unclear what types of records it possesses that it withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that it withheld or redacted under Exemptions (a) and (c) of the Public Records Law. Common law attorney-client privilege The Supreme Judicial Court confirmed the existence of a common law attorney-client privilege with respect to government matters in the Commonwealth of Massachusetts. Suffolk Constr. Co., Inc. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). The Supreme Judicial

Chief James Lovell SPR25/0600 Page 6 March 14, 2025 Court has found that the Supervisor of Records may make “a decision . . . delineating what documents among . . . requested reports are privileged or exempted from the public records act.” Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609 (1993). A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9; see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney- client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). In its response, the Department stated, “[p]ages 98 to 102 contain discussions between the Department and its attorneys for purpose of obtaining legal advice which has not been shared with the public were redacted as attorney‐client privileged.” Based on the Department’s response, I find that the Department must clarify whether the privilege as to these communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Further, I find the Department must provide a privilege log in accordance with G. L. c. 66, § 10A(a). The log must include the date, the names of the author and recipients, the substance of the record, and the grounds upon which the attorney-client privilege is being claimed. Conclusion Accordingly, the Department is ordered to provide Mr. Wiley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Wiley may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Chief James Lovell SPR25/0600 Page 7 March 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Shawn Wiley