Nicolette C. Angelli v. Burlington, Town of - Police Department (SPR 20250930)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2025 SPR25/0930 Kate Curtis‐Bozio Records Access Officer Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Ms. Curtis-Bozio: I have received the petition of Nicolette C. Angelli, Esq., of AMPS Law, P.C., appealing the response of the Burlington 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 April 2, 2025, Attorney Angelli requested “copies of any and all Search Warrants, Reports, and/or Call Log related to [two named individuals] (from January 2025 and present day). Specifically, any and all reports that resulted in or is otherwise related to the Search Warrant dated March 18, 2025.” The Department responded on April 2, 2025. Unsatisfied with the Department’s response, Attorney Angelli petitioned this office, and this appeal, SPR25/0930, was opened as a result. Subsequent to the opening of this appeal, the Department provided further responses on April 14, 2025 and April 18, 2025. 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 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

Kate Curtis‐Bozio SPR25/0930 Page 2 April 18, 2025 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 April 2nd and April 14th and April 18th Responses In its April 2, 2025 response, the Department “identified the following responsive record(s) in its custody, control, and possession: ‘25-7171 report and 25-7171 Log Entry.’” The Department cites G. L. c. 6, § 167-178B and G.L. C. 93H as they operate through Exemption (a) of the Public Records Law, along with Exemptions (c) and (f) for withholding the responsive report and redacting the responsive log entry. See G. L. c. 4, § 7(26)(a), (c), (f). The Department also states that “the records are the subject of dispute in the matter of Commonwealth V. Bernard, currently docketed as 2553CR000659 before the Woburn District Court. According to a docket search, this matter is currently open and pending.” In its April 14, 2025 and April 18, 2025 responses, the Department confirms that the “investigation remains ongoing.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its April 2nd response, the Department states the following: [T]he public records sought are currently the subject of dispute in active litigation, administrative hearings, or mediation. In support of this, the records are the subject of dispute in the matter of Commonwealth V. Bernard, currently docketed as 2553CR000659 before the Woburn District Court. According to a docket search, this matter is currently open and pending. In the appeal petition, Attorney Angelli argues that “it appears that the matter of Commonwealth V. Bernard, docketed as 2553CR000659, which was before the Woburn District Court was closed on March 20, 2025 (after all charges were dismissed).” Where the litigation cited in the Department’s April 2nd response has been closed, I will proceed to address the Department’s claims for withholding the records.

Kate Curtis‐Bozio SPR25/0930 Page 3 April 18, 2025 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. 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

Kate Curtis‐Bozio SPR25/0930 Page 4 April 18, 2025 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). In its April 2nd response, under CORI, the Department argues the following: The records requested contain information regarding the disposition of currently open charges and the arrest of an individual specifically identified in your request. This information consists of information which is protected under G.L. c. 6, sections 167-178B since this information is associated with information that falls under the guidelines of Criminal Offender Record Information (CORI). As a result, such information must be withheld under the law. G. L. c. 93H In its response, the Department also cites G. L. c. 93H, which provides in pertinent part as follows: “Personal information” a resident’s first name 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: (a) Social Security number; (b) driver’s license number or state-issued identification card number; or (c) financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to a resident’s financial account; provided, however, that “Personal information” shall not include information that is lawfully obtained from publicly available information, or from federal, state or local government records lawfully made available to the general public.

Kate Curtis‐Bozio SPR25/0930 Page 5 April 18, 2025 G. L. c. 93H, § 1. A person or agency that maintains or stores, but does not own or license data that includes personal information about a resident of the commonwealth, shall provide notice, as soon as practicable and without unreasonable delay, when such person or agency (1) knows or has reason to know of a breach of security or (2) when the person or agency knows or has reason to know that the personal information of such resident was acquired or used by an unauthorized person or used for an unauthorized purpose, to the owner or licensor in accordance with this chapter... G. L. c. 93H, § 3(a). In its April 2nd response, the Department argues that “G.L. C. 93H requires the protection of certain personal information when provided in combination with a person’s name.” Exemption (c) Exemption (c) applies to: 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.

Kate Curtis‐Bozio SPR25/0930 Page 6 April 18, 2025 In its April 2nd response, under Exemption (c), the Department argues the following: The records requested contain information that, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details, and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (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. Department of Agricultural Resources, 477 Mass. 280, 292 (2017). The record requested contains information of an extremely personal nature (including but not limited to driver’s license numbers, social security numbers, and dates of birth), which, if disclosed with the individual’s name, would allow for an unwarranted invasion of privacy and vulnerability to cybercrime and identity theft. As a result, such information must be redacted under the law. 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.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the

Kate Curtis‐Bozio SPR25/0930 Page 7 April 18, 2025 encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its April 2nd response, the Department argues the following under Exemption (f): The records requested contain detailed information on an arrest of a named individual specified in your request and information on a case that has yet to be adjudicated in court. In Bougas V Chief of Police in Lexington the SJC advised that Exemption F aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information... and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” As this case has yet to be presented to court certain information contained within the record, if released, could negatively impact the Commonwealth’s case if disclosed at this time. As a result, such information must be withheld under the law. As a result, such information must be redacted under the law. In its April 18th email, the Department further explains the following: The investigation remains ongoing at this time. Releasing the requested document

Kate Curtis‐Bozio SPR25/0930 Page 8 April 18, 2025 connected to this investigation at this stage would impact the Department’s ability to conduct a reliable investigation. Disclosing materials associated with this case before the investigation has been thoroughly evaluated and concluded would not serve the public’s best interest and could negatively impact the case. To the extent that the Department claims that the records pertain to an active and ongoing investigation and that disclosure would reveal the course of its investigation, the Department may properly claim Exemption (f) of the Public Records Law to withhold the requested records at this time. It should be noted that a change in the status of the investigation could impact the applicability of Exemption (f). Where the Department may withhold the records pursuant to Exemption (f) of the Public Records Law, I find it unnecessary to opine on the Department’s claims under Exemptions (a) and (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Angelli is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Nicolette C. Angelli, Esq.