Christopher Weeks v. Framingham, City of - Police Department (SPR 20251097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2025 SPR25/1097 Colleen Kehew Department RAO Framingham Police Department 1 William Welch Way Framingham, MA 01702 Dear Ms. Kehew: I have received the petition of Christopher Weeks appealing the response of the Framingham 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 24, 2025, Mr. Weeks requested the following records from January 1, 2019 to the present: [1] Police Records: [a] All police reports, calls for service, and incident reports related to any interactions or complaints involving [an identified individual] or any related individuals or locations known to be connected . . .[;] [b] Internal memos, documents, and communications . . . between officers, supervisors, and external agencies concerning [an identified individual’s] interactions with the department[;] [c] Any records pertaining to arrests, charges, or investigations involving [an identified individual] or incidents [an identified individual] reported[;] [2] Animal Control Records: [a] All records, reports, complaints, or documentation related to interactions or investigations conducted by Framingham Animal Control involving [an identified individual] or any animals under [an identified individual’s] care[;] [b] Internal communications . . . related to the handling of animal-related complaints or incidents involving [an identified individual] or individuals connected . . .[;] [3] General . . . : [a] Any policies, procedures, or training materials regarding the handling of animal control complaints and enforcement of animal-related ordinances[;] 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

Colleen Kehew SPR25/1097 Page 2 May 6, 2025 [b] Logs, schedules, or notes documenting interactions between Animal Control officers, police officers, and other Framingham town officials in relation to incidents involving [an identified individual][;] [c] Records of public complaints, investigations, or resolutions involving Framingham Animal Control and Police Department officers that mention [an identified individual] or directly relate to incidents involving [an identified individual]. The Department responded on February 12, 2025 and April 1, 2025. Unsatisfied with the Department’s responses, Mr. Weeks appealed, and this case, SPR25/1097, was opened as a result. While this appeal was pending, the Department provided a supplemental response by email to Mr. Weeks and this office on April 22, 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 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 February 12th, April 1st, and April 22nd Responses In its February 12, 2025 response, the Department stated the following: The records responsive to your request are attached/linked. The animal control report, associated email, and two additional emails have been redacted under M.G.L. c. 4, §7(26) (c) for the date of birth and personal contact information of private citizens. The police reports have been redacted under M.G.L. c. 4, §7(26) (c) and (f) for the date of birth and personal contact information of private citizens and confidential witness information. One police report has been redacted under M.G.L. c. 4, §7(26) (a) through G.L. c. 119, § 60A for material pertaining to a juvenile. Two additional reports have been withheld under M.G.L. c. 4, §7(26) (a)

Colleen Kehew SPR25/1097 Page 3 May 6, 2025 through G.L. c. 6, §§167A, 172 (CORI). In its April 1, 2025 response, a copy of which the Department submitted to this office with its April 22, 2025 supplemental response, as described below, the Department provided numerous additional responsive records in redacted form. The Department also provided additional information regarding its claims under Exemption (a) and G. L. c. 119, § 60, and Exemptions (c) and (f) for redacting the responsive records. The Department further provided additional information under Exemption (a) and CORI for withholding records responsive to Mr. Weeks’ request. In its April 22, 2025 supplemental response, the Department stated that it “conducted a diligent search and has provided any responsive records it was able to locate to Mr. Weeks.” The Department further explained, “all records were provided with standard redactions under the Public Records law; detailed language of each exemption applied was also provided to Mr. Weeks.” As part of its supplemental response, the Department “attached [a copy of] the email chain in which the records and all relevant exemptions were provided,” and noted that “[e]xemptions can be found in [the Department’s] email to Mr. Weeks dated April 1st, 2025.” Current Appeal In his appeal petition, Mr. Weeks requests “that [this] office . . . [c]onduct an independent review of the redactions applied and determine whether they are lawful under G.L. c. 4, § 7(26)[.]” He further asserts, “I have every reason to believe there are numerous additional Animal Control and police call records . . . that have been deliberately withheld, either never acknowledged or silently excluded from past responses to my lawful public records requests.” 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, 545-546 (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.”

Colleen Kehew SPR25/1097 Page 4 May 6, 2025 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. Records of Youthful Offender In its February 12, 2025 response, the Department cites G. L. c. 119, § 60A, which provides in pertinent part: The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119, § 60A. In its April 1, 2025 response, under the statute cited above, the Department additionally states, “[i]n this instance, the Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure. For instance, the provisions of G.L. c. 119, §§1-84, relative to care and protection of children proceedings, specifically prohibit the release of information relating to juveniles.” Upon review of the Department’s responses, it is unclear what information has been redacted from the responsive records, and how the redacted information constitutes the type of record in a case “of delinquency arising under sections fifty-two to fifty-nine,” as required under G. L. c. 119, § 60A. Additionally, the Department did not identify the portions of records in its possession that it intends to withhold from disclosure under Exemption (a) and G. L. c. 119, § 60A. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). The Department must clarify these matters.

Colleen Kehew SPR25/1097 Page 5 May 6, 2025 Criminal Offender Record Information In its February 12, 2025 response, the Department cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law to withhold two responsive records. 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 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. In its April 1, 2025 response, the Department provided the following additional information regarding its claims under Exemption (a) and CORI to withhold responsive records: . . . G.L. c. 6, § 167, 172; 803 C.M.R. 2.03(3). The CORI statute imposes restrictions on the dissemination of records which were compiled by the Department concerning an identifiable individual which relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Therefore, these records are being withheld pursuant to Exemption (a) of the Public Records Law. . . . G.L. c. 6, § 167, the CORI statute, prevents the Department from disclosing the requested police arrest records and reports. Based on the Department’s responses, it is unclear how the records requested by Mr.

Colleen Kehew SPR25/1097 Page 6 May 6, 2025 Weeks fall within the definition of CORI. Specifically, the Department has not demonstrated that the two withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. It is additionally uncertain how the responsive records can be withheld in their entirety. 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). The Department must clarify these matters. 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. 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.

Colleen Kehew SPR25/1097 Page 7 May 6, 2025 Subsequent to the claims provided in the Department’s February 12, 2025 response to redact the responsive records under Exemption (c), as described above, in its April 1, 2025 response, the Department argues, “[p]roviding the requested records unredacted would violate Public Law, Exemption (C) G.L. c. 4, § 7(26)(c).” Although the Department indicates in its February 12, 2025 response that it redacted “[t]he animal control report, associated email . . . two additional emails[,]” and “[t]he police reports” “for the date of birth and personal contact information of private citizens[,]” it is unclear how the date of birth constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. The Department also 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. Further, where the Department states that it redacted the records identified in its February 12, 2025 response for the “personal contact information of private citizens[,]” I find that it is unclear what information has been redacted from the records, nor, how the redacted information constitutes the type of record contemplated under Exemption (c). The Department 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 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 289-290. 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

Colleen Kehew SPR25/1097 Page 8 May 6, 2025 assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. 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. Following the Department’s February 12, 2025 response in which it indicated that “[t]he police reports have been redacted under . . . [Exemption] (f) for . . . confidential witness information[,]” the Department further elaborated on its claims under Exemption (f) to redact the responsive records in its April 1, 2025 response: Exemption F - WITNESS. . . . [A]ny details in witness statements, which if released create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness are indefinitely exempt. Exemption F – INVESTIGATORY. . . . The exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed To the extent that the responsive police reports contain information identifying voluntary witnesses, the Department may permissibly withhold such portions from disclosure under Exemption (f). However, the Department’s responses did not provide supporting information on how the investigative process is ongoing, nor does it describe how the redacted information in the requested records is part of the investigation. It is additionally uncertain how disclosure of the redacted portions “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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. L. c. 66, § 10(a)(ii). Where the Department confirmed in its April 22, 2025 supplemental response that all responsive records have been provided, I find that the portion of Mr. Weeks’ appeal regarding the existence of additional records is resolved.

Colleen Kehew SPR25/1097 Page 9 May 6, 2025 Conclusion Accordingly, the Department is ordered to provide Mr. Weeks with a response to his 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. Sincerely, Manza Arthur Supervisor of Records cc: Christopher Weeks