David Chritson v. Somerville, City of (SPR 20251091)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1091 David Shapiro, Esq. Deputy City Solicitor City of Somerville – Law Department 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of David Chritson appealing the response of the City of Somerville (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 10, 2024, Mr. Chritson requested “records made or received by SPD’s [named individual] and related to [himself], from May 1, 2021 through Dec. 31, 2023.” Previous Appeal This request was the subject of a previous appeal. See SPR25/0613 Determination of the Supervisor of Records (March 17, 2025). In my March 17th determination, I ordered the City to provide Mr. Chritson with a further response to his request. Subsequently, the City responded on March 19, 2025. Unsatisfied with the City’s response, Mr. Chritson petitioned this office, and this appeal, SPR25/1091, 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

David Shapiro, Esq. SPR25/1091 Page 2 May 5, 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. The January 31st and March 19th Responses In its January 31, 2025 and March 19, 2025 responses, the City provides numerous records in redacted form, and cites Exemptions (c) and (f) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(c), (f). 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). 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). 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).

David Shapiro, Esq. SPR25/1091 Page 3 May 5, 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 January 31st response, under Exemption (c), the City argues the following: Personal identifying information has been redacted pursuant to exemption (c), the privacy exemption. The disclosure of such information may constitute an unwarranted invasion of personal privacy and the public interest in disclosure of the information does not outweigh the privacy interest associated with disclosure of the information. In its March 19th response, the City further argues the following: The redactions made to the documents provided to Mr. Chritson reflect references to numerous other individuals, some of whom are juveniles, and involve private and sensitive matters including sexual abuse, domestic violence and other highly confidential situations within the Community Outreach, Health & Recovery Division of the Somerville Police Department. The documents provided to Mr. Chritson have not been redacted with respect to any of Mr. Chritson’s personal identifying information. Based on the City’s responses, it is unclear how the redacted portions of the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the City did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The City 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

David Shapiro, Esq. SPR25/1091 Page 4 May 5, 2025 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. 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. 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); 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 Retirement 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. In its January 31st response, under Exemption (f), the City argues the following: Exemption (f) permits redaction of the names and identifying details of voluntary complainants and witnesses. Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976). Further, exemption (f) allows redactions 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, cl.26(f). Based on the City’s responses, to the extent that the City redacted identifying information of voluntary witnesses and complainants, I find that the City may permissibly do so under Exemption (f). However, it is unclear how the remaining redacted portions of the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the City did not demonstrate how disclosure of the redacted portions of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to redact records under Exemption (f). Records in Existence; Possession, Custody, or Control The duty to comply with requests for records extends 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.

David Shapiro, Esq. SPR25/1091 Page 5 May 5, 2025 L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its January 31st response, the City stated that “[d]ue to time constraints on my part, I have been unable to complete a response to you in a timely manner. Attached are the 2021 records you requested.” In his appeal petition, among other things, Mr. Chritson contends that “the City is withholding additional public records which it intentionally failed to identify and disclose to the Supervisor and to Petitioner. ... The City’s denial of the existence of additional records, and its failure to identify all responsive public records in the possession, custody, or control of the City, violated the law.” Based on the City’s responses, and the information provided in Mr. Chritson’s appeal petition, it is unclear whether the City possesses additional records responsive to Mr. Chritson’s request. If the City does possess additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the City is ordered to provide Mr. Chritson 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. Mr. Chritson may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Chritson