Christopher Bianchi v. Weymouth, Town of - Police Department (SPR 20250867)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 9, 2025 SPR25/0867 Captain Richard Abbadessa Administrative Services Division Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Captain Abbadessa: I have received the petition of Christopher Bianchi appealing the response of the Weymouth 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 March 26, 2025, Mr. Bianchi requested “… copies of all police reports, incident summaries, and investigative records held by the Weymouth Police Department in which [an identified individual is] named as a subject, involved party, or suspect.” The Department provided a response on March 28, 2025. Unsatisfied with the response, Mr. Bianchi petitioned this office and this appeal, SPR25/0867, 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

Christopher Bianchi SPR25/0867 Page 2 April 9, 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 March 28th Response In its March 28, 2025 response, the Department provided Mr. Bianchi with responsive records redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. Current Appeal In his March 28, 2025 petition to this office, Mr. Bianchi contended that the Department did not provide a sufficient explanation of how each exemption applied to the responsive records. Mr. Bianchi further claimed that the Department was withholding additional records responsive to the request. In an email communication to this office on April 3, 2025, the Department confirmed that Mr. Bianchi had been provided with all records responsive to the request. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends only to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Where the Department has confirmed that it has provided all responsive records in its possession, I find that Mr. Bianchi’s appeal regarding this issue is resolved. 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).

Christopher Bianchi SPR25/0867 Page 3 April 9, 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. In its March 28th response, the Department cited 18 U.S.C. § 2721, the Driver’s Privacy Protection Act, to justify the redaction of “Driver’s License Numbers, Social Security Numbers, Phone Numbers, Email Addresses, and/or Banking Information.” The Department further cited G. L. c. 66, § 10B to justify the redaction of “… certain personal information relating to victims and victims families.” Where, for the reasons stated below, the Department’s redactions pursuant to Exemption (a) are justified under Exemptions (c) and (f) of the Public Records Law, I decline to opine on the applicability of the cited statutes to the responsive records. 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).

Christopher Bianchi SPR25/0867 Page 4 April 9, 2025 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 March 28th response, the Department informed Mr. Bianchi that pursuant to Exemption (c), it was redacting “Driver’s License Numbers, Social Security Numbers, Phone Numbers, Email Addresses, and/or Banking Information [and] Personal information or data.” Based on the Department’s response, I find that it may permissibly withhold driver’s license numbers, social security numbers, and personal telephone numbers from disclosure under 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. It is also unclear if such information is available from other sources. 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 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 v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). 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

Christopher Bianchi SPR25/0867 Page 5 April 9, 2025 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. To the extent that the Department has redacted the identifying information of victims from the responsive records, I find that the Department has met its burden under Exemption (f) to redact such information. Conclusion Accordingly, the Department is ordered to provide Mr. Bianchi 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. Bianchi 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: Christopher Bianchi