Michael A. Brandi, Esq. v. Dennis, Town of (SPR 20250944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/0944 Theresa T. Bunce Town Clerk Town of Dennis 458 Main Street, P.O. Box 2060 South Dennis, MA 02660 Dear Ms. Bunce: I have received the petition of Michael A. Brandi, Esq. appealing the response of the Town of Dennis (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 13, 2025, Attorney Brandi requested “…all police reports, witness statements, incident reports, or other like records which relate to any of the following [identified individuals]. This request seeks records from February, 2024.” The Town responded on April 1, 2025. Unsatisfied with the Town’s response, Attorney Brandi petitioned this office and this appeal, SPR25/0944, 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

Theresa T. Bunce SPR25/0944 Page 2 April 22, 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 Town’s April 1st Response In its April 1, 2025 response, the Town cited Exemptions (c) and (f) of the Public Records Law to redact and withhold certain responsive records. See G. L. c. 4, § 7(26)(c), (f). Additionally, the Town stated: …the Police Department has already provided you with certain police records responsive to this request. After the Police Department’s further, good faith efforts in receipt of this request, the Police Department has a dispatch recording for the date and time specified in your request. Without confirming the identity of the caller for the time and date specified above, please be advised that such record is being provided, in redacted form… In addition, the Police Department has recordings from officers’ body worn cameras (BWC), which it has conducted an individual review of in processing this request. After such review, the Police Department is withholding such BWC recordings, as redaction is not possible… given the content of the recordings… Current Appeal In his appeal petition, Attorney Brandi states, “[t]he requested body camera footage must be disclosed. To the extent any information may be properly redacted, the agency must disclose portions of the video that are subject to disclosure. It is not permissible to assert a blanket denial of access simply because some information may properly be withheld.” 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.

Theresa T. Bunce SPR25/0944 Page 3 April 22, 2025 Medical information that is of a personal nature and relates to a specifically named individual may be 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. Globe Newspaper Co., 338 Mass. 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). 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. 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 April 1st response, the Town asserts: …the BWC recordings, which include medical information and details of a highly personal nature regarding specifically identified individuals the identity of which is known to you (based on the request provided), cannot be disclosed given the privacy interests involved pursuant to Exemption (c) of the Public Records Law… based on the content of the BWC footage, the privacy interests of individuals known to you based on your request would be invoked, given the medical information and details of a highly personal nature conveyed in the BWC recordings, therefore, redaction is not possible. Based on the Town’s response, I find it has not met its burden to withhold the body worn camera footages in their entirety under Exemption (c) of the Public Records Law. Although the Town may permissibly withhold medical information of specifically identified individuals, it is unclear how the records cannot be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (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).

Theresa T. Bunce SPR25/0944 Page 4 April 22, 2025 It is also unclear how the body worn camera footages, in their entirety, contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it not clear whether this information is available from other sources. PETA, 477 Mass. at 292. The Town 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, 378 Mass. at 290 n.18. 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and voluntary witnesses. Axtell, 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., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its April 1st response, the Town argues under Exemption (f), “[h]ere, information conveyed by voluntary complainants and witnesses during the matter in BWC footage cannot be redacted to sufficiently shield the information voluntarily provided to responding police.”

Theresa T. Bunce SPR25/0944 Page 5 April 22, 2025 Although the identifying information of voluntary witnesses and complainants may be withheld, it is unclear how the body worn camera footages, in their entirety, can be withheld under Exemption (f). It is not clear from the Town’s response whether the body worn camera footages contain confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. Further, the Town did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Attorney Brandi 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. Attorney Brandi may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael A. Brandi, Esq.