Fourth Estate Journalism v. Somerville, City of (SPR 20251189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1189 Meredith Stivers, Esq. Assistant City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Stivers: I have received the petition of Fourth Estate Journalism (requestor) 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 February 27, 2025, the requestor sought “[a]ll public records, spanning from February 27, 2023 to the current date, concerning all reports or complaints- whether oral, written, informal, formal, partial, or fully documented-that involve allegations, concerns, or grievances raised against former and present employees, personnel, or affiliates of the Somerville Police Department. This includes cases in which the reporter or complainant may have chosen not to proceed, opted against further engagement, or otherwise ceased participation at any stage of the process.” Previous Appeals This request was the subject of previous appeals. See SPR25/0737 Determination of the Supervisor of Records (March 25, 2025) and SPR25/0830 Determination of the Supervisor of Records (April 7, 2025). In my April 7th determination, I ordered the City to provide the requestor with responsive records on a rolling basis. The City responded on April 28, 2025. Unsatisfied with the City’s response, the requestor petitioned this office and this appeal, SPR25/1189, 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

Meredith Stivers, Esq. SPR25/1189 Page 2 May 13, 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. 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 City’s April 28th Response In its April 28, 2025 response, the City provided a link to the “first set of records responsive to [the] request,” and cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), as well as Exemptions (c), (f) and (o) of the Public Records Law to redact certain information from the records. Additionally, the City stated, “[s]upplemental responses will be sent on a rolling basis as soon as practicable.” Current Appeal In its appeal petition, the requestor challenges the City’s “failure to deliver the complete public records,” and argued that the records contained “unlawful redaction of the names of police officers involved in misconduct, improper application of exemptions (c) and (f), and failure to satisfy [the] statutory obligation to substantiate any lawful basis for withholding or redacting records concerning police misconduct.” It appears that the requestor is not appealing redactions to the responsive records under Exemptions (a) and (o) of the Public Records Law. 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

Meredith Stivers, Esq. SPR25/1189 Page 3 May 13, 2025 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. Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. 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. Under Exemption (c), the City stated, “…personnel and medical information, as well as materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy, have been redacted from the enclosed documents.” Based upon the update to Exemption (c) where the amendment states that this, “subclause shall not apply to records related to a law enforcement misconduct investigation,” it is unclear how those portions of the requested records can be redacted. The Supreme Judicial Court has held that Exemption (c) “clearly and unambiguously states that the privacy exemption does not apply to an ‘investigation’ of law enforcement misconduct.” Eric Mack v. Dist. Att’y for the Bristol Dist., 494 Mass. 1, 12 (2024). Further, the Court held that the phrase “related to,” as used in Exemption (c), “is construed broadly.” Id. at 12 n.9. Specifically, the Court held that the exemption did not apply to records related to an investigation into whether two police officers had committed any crimes or violated their

Meredith Stivers, Esq. SPR25/1189 Page 4 May 13, 2025 department’s use of force policy. Id. at 12. Exemption (c) did not apply even where the investigation concluded there was no basis to charge the officers with crimes. Id. at 6. In light of the Mack decision, to the extent the responsive records contain reports of an investigation into the alleged misconduct of a police officer, I find that the City has not met its burden to withhold the names of police officers involved or otherwise redact those portions of the responsive records under Exemption (c). 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. 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. Under Exemption (f), the City stated, “…redactions have further been made to the enclosed documents for details in witness statements or witness identities, ‘which if released

Meredith Stivers, Esq. SPR25/1189 Page 5 May 13, 2025 create a grave risk of directly or indirectly identifying a private citizen who volunteers as a witness.’ Globe Newspaper Co. v. Boston Retirement Board, 388 Mass. 427, 438 (1983)… we have redacted any information identifying the name(s) or other identifying information of the complainant(s) or witness(es) in the records.” Where the City states that it redacted identifying information of civilian complainants and witnesses, I find the City may properly claim Exemption (f) in withholding such identifying details of any victims, complainants and voluntary witnesses where the individuals can be indirectly identified even with redaction from the responsive records. See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where the requestor’s request was submitted on February 27, 2025, and the City has not completed providing the responsive records, nor cited an exemption for withholding the remaining records, I find the City has not met its burden in responding to the request in a complete fashion in accordance with G. L. c. 66, § 10(b)(vi). Consequently, the City must provide an estimated date as to when it expects to complete its review and provide the remaining responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must continue to provide remaining responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide the requestor 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. The requestor may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Meredith Stivers, Esq. SPR25/1189 Page 6 May 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Fourth Estate Journalism