Alfred DiGregorio v. Brookline, Town of - Police Department (SPR 20251076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 29, 2025 SPR25/1076 Amanda Williams Records Clerk Brookline Police Department 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Alfred DiGregorio appealing the response of the Brookline 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 11, 2025, Mr. DiGregorio requested “…any and all documents or reports that your station might maintain regarding or make mention of [identified individual]. Additionally, please provide any and all documents or reports that your station might maintain regarding or make mention of [identified individual].” Previous Appeals This request was the subject of previous appeals. See SPR25/0847 Determination of the Supervisor of Records (March 28, 2025) and SPR25/0855 Determination of the Supervisor of Records (April 8, 2025). In my April 8th determination, I learned that the Department intended on providing Mr. DiGregorio with a response. On April 18, 2025, the Department provided a response. Unsatisfied with the Department’s response, Mr. DiGregorio petitioned this office and this appeal, SPR25/1076, 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). 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

Amanda Williams SPR25/1076 Page 2 April 29, 2025 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. Att’y 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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 his appeal petition, Mr. DiGregorio states, “Brookline PD has simply restated their previous denial. As stated prior, neither of those two exemptions apply to the records requested. Further, they cite an additional exemption (MGL c. 41 s. 97d/ c. 209a s1- 11) that is completely irrelevant. My understanding is none of the reports relate to an investigation concerning any of the topics covered that would be excluded under that law. Further stated, there is no evidence of an open investigation into the matters described in these reports.” The Department’s April 18th response In its April 18, 2025 response, the Department cites Exemptions (a), (c), and (f) of the Public Records Law to withhold responsive records in their entirety. See G. L. c. 4, § 7(26)(a)(c)(f). The Department also states: Given the nature of the investigation, the involvement of sensitive personal data, the potential impact on law enforcement activities, and the concerns regarding the safety of victims and witnesses, the denial of your request remains in full effect. The exemptions outlined above are designed to ensure that the public records law does not compromise either the effectiveness of law enforcement or the privacy and safety of individuals involved in such matters. There are no fees associated with this request. At this time the Department considers this request closed. There are no other records or categories of records sought that are not within the possession, custody, or control of the [Department], nor do I know of any other agency or municipality that may be in possession, custody, or control of any responsive records you seek. G.L. c. 66, § 10( b)( ii-iii). As the documents responsive to your request are exempt from public disclosure, the [Department] has withheld records or information responsive to your request. G.L. c. 66, § 10( b)( iv). Since we intend to not produce any documents responsive as to your request, and we need not provide reasonable timeframe, nor suggest a reasonable modification of the scope of the request, or an itemized, good faith estimate of any fees that may be charged to produce the records. G.L.

Amanda Williams SPR25/1076 Page 3 April 29, 2025 c. 66, § 10(b)(v),(vi),( viii). 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). 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 April 18th response, the Department cites G. L. c. 41, § 97D, which provides in relevant part: 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,

Amanda Williams SPR25/1076 Page 4 April 29, 2025 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 response, the Department asserts: the Department denies these materials as the open investigation pertaining to MGL c. 41 s. 97d/ c. 209a s1- 11. Such reports are not considered public records and will only be released to the victim(s) or legal advocate/representation of the victim(s) with their consent. Disclosing details could expose the victim or witnesses to additional threats, and hinder further police investigation. As a result, their safety and well-being must be safeguarded, and any records that could compromise their security are appropriately withheld…. 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. Under Exemption (c), in its April 18th response, the Department states:

Amanda Williams SPR25/1076 Page 5 April 29, 2025 Exemption (c) record(s) are withheld due to ‘intimate detail of a highly personal nature;’… The Department believes it is in the best interest to keep record(s) withheld from public record as it constitutes an unwarranted invasion of privacy. Disclosure of which may constitute an unwarranted invasion of these individuals’ personal privacy and safety. In making this determination, consideration has been given to (1) whether disclosure would result in personal embarrassment to the individuals identified in the report; (2) to whether the materials sought contain intimate details of a highly personal nature; and (3) to whether the same information is available from other sources. It is likely that if such information is disclosed, the disclosure would result in such embarrassment; and the report does contain details of a highly personal nature. Lastly, it is unknown, but unlikely, that the information contained in the report(s) is available from other public sources. Making public the personal information regarding individual(s) that contact the Department in regards to investigations could deter individuals in the future for fear of subjecting them to the risk of unwanted publicity that would not exist if not for contact with the Department to investigate an incident. Given the nature of the investigation, releasing personal identifying information such as names, addresses, or other sensitive details about the victim or witnesses may put them at further risk of harm, retaliation, or harassment…. 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.

Amanda Williams SPR25/1076 Page 6 April 29, 2025 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 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 18th response, the Department states: Exemption (f) record(s) associated with this PRR are connected to an open and active investigation(s), a release of the information in report(s) would jeopardize the Department’s ability to effectively pursue investigation(s). Report(s) contain voluntary witness statements and evidence which is currently being evaluated and followed up upon by the Department’s Detective Division. At this time a release of any of these materials prior to being fully vetted would compromise investigation(s). Disclosure is likely to compromise both the privacy and safety of these individuals and effective law enforcement. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62(1976)….

Amanda Williams SPR25/1076 Page 7 April 29, 2025 In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a), (c), and (f) claims made by the Department to redact the responsive records, the Department must provide this office with un-redacted copies of the records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. 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 judicial system. See Rock v. Mass. 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 un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Alfred DiGregorio