Tricia L. Nadolny v. Dartmouth, Town of - Police Department (SPR 20250995)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2025 SPR25/0995 Nicole Perullo Police Clerk Dartmouth Police Department 1390 Tucker Road Dartmouth, MA 02747 Dear Ms. Perullo: I have received the petition of Tricia L. Nadolny, of the Boston Globe, appealing the response of the Dartmouth 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 29, 2025, Ms. Nadolny requested “[a]ll Dartmouth Police Department police reports that mention [an identified individual].” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0766 Determination of the Supervisor of Records (April 1, 2025). In my April 1st determination, I learned that the Department provided a further response to Ms. Nadolny on March 21, 2025. Unsatisfied with the response, Ms. Nadolny petitioned this office and this appeal, SPR25/0995, 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 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

Nicole Perullo SPR25/0995 Page 2 April 28, 2025 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. Current appeal In her April 11, 2025 appeal, Ms. Nadolny states, “I am writing to formally appeal the determination on appeal SPR25/0766. The determination (attached) notes that the Dartmouth Police Department provided me with additional records on March 21, 2025. The Department, however, did not provide me with any additional records. (Please see the attached email between myself and Dartmouth Records Supervisor ... in which she confirms no records were sent to me.)” The Department’s February 10th and March 21st response In its February 10, 2025 response, the Department identified the following twenty records responsive to the request: Report numbers 20-201-AR, 16-309-AR, 16-75-AR, 24-1019-OF, 20- 1858-OF, 20-1381-OF, 20-1360-OF, 20-1060-OF, 19-1879-OF, 19-1843-OF, 19-1834-OF, 19- 1290-OF, 19-1295-OF, 19-1090-OF, 19-794-OF, 19-717-OF, 19-676-OF, 16-1473-OF, 16-859- OF, and 15-129-OF. In its March 21, 2025 response, the Department referenced its February 10, 2025 response and cited Exemptions (a), (c), and (f) of the Public Records Law to redact and withhold certain records. 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

Nicole Perullo SPR25/0995 Page 3 April 28, 2025 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. The Department cited G. L. c. 41, § 97D which provides in pertinent part as follows: 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 ... G. L. c. 41, § 97D. In its February 10, 2025 response, the Department stated that the following reports will be withheld in their entirety pursuant to Exemption (a) of the Public Records Law: 16-309-AR, 16- 75-AR, 20-1060-OF, 19-1879-OF, 19-1834-OF, 19-1295-OF, 19-1290-OF, 19-1090-OF, 19- 794-OF, 19-717-OF, 19-676-OF, and 16-859-OF. 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).

Nicole Perullo SPR25/0995 Page 4 April 28, 2025 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. 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. In its February 10, 2025 response, the Department withheld report 19-1295-OF under Exemption (c) of the Public Records Law. The Department advised, “[t]he record(s) requested is a medical incident, which is personal and intimate in nature. The department would not be able to redact this report without divulging medical information. As a result, such information must be withheld under law following the guidelines of Public Record Law M.G.L c.66, §10 ...” In its March 21, 2025 response, the Department stated that it, “provided records 20-201- AR, 20-1360-OF, 24-1019-OF, 20-1858-OF, 20-1381-OF, 19-1843-OF, 16-1473-OF, and 15- 129-OF” with redactions. The Department further stated that “[t]he records requested contained medical information, witness information, social security number(s), state ID number(s), license number(s), medical information, telephone number(s), confidential witness information, and confidential victim information which are personal and intimate in nature....The records requested contain information which, 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.” 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

Nicole Perullo SPR25/0995 Page 5 April 28, 2025 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. 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. 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 February 10, 2025 response, the Department states that “... the Dartmouth Police Department has denied your request for reports 16-309-AR, 16-75-AR, 20-1060-OF, 19-1879- OF, 19-1834-OF, 19-1295-OF, 19-1290-OF, 19-1090-OF, 19-794-OF, 19-717-OF, 19-676-OF, and 16-859-OF as your request is not deemed to be a request for public records under the law.” In its March 21, 2025 response, the Department asserted, “[t]he records requested contained, witness information, confidential witness information, and confidential victim information. The names of all parties involved in report 20-1360-OF have been redacted. Releasing the names of the individuals involved would disclose the confidential people.” In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold and/or redact the records pursuant to Exemptions (a), (c), and (f) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the

Nicole Perullo SPR25/0995 Page 6 April 28, 2025 judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Tricia L. Nadolny