David Chritson v. Somerville, City of - Law Department (SPR 20251279)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2025 SPR25/1279 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 October 27, 2024, Mr. Chritson requested, “all records, including, but not limited to, e-mails, notes, reports, audio, videos, images, documents, recordings, etc., made or received by [an identified City police officer], and related in any way to [another identified person]. Specific search duration: March 1, 2023 through October 31, 2023.” Previous Appeals This request was the subject of previous appeals. See SPR24/3377 Determination of the Supervisor of Records (December 27, 2024) and SPR25/0918 Determination of the Supervisor of Records (April 15, 2025). In my April 15th determination, I ordered the City to clarify its redactions under Exemptions (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(c), (f). The City responded on April 29, 2025. Unsatisfied with the City’s response, Mr. Chritson petitioned this office, and this appeal, SPR25/1279, 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 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. SPR25/1279 Page 2 May 21, 2025 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. Current Appeal In his appeal petition, Mr. Chritson states, “[t]he City improperly invoked Exemptions (c) and (f) to redact or withhold communications allegedly involving alleged witnesses….” The City’s April 29th Response In its April 29, 2025 response, the City clarified its redactions of responsive records under Exemptions (c) and (f) of the Public Records Law. 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). 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

David Shapiro, Esq. SPR25/1279 Page 3 May 21, 2025 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. 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. 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;

David Shapiro, Esq. SPR25/1279 Page 4 May 21, 2025 • 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 29th response, the City states: [T]he Somerville Police Department communications are related to internal procedures that would demonstrate how internal matters are investigated which would prejudice future law enforcement efforts. The documents seem to reflect an on-going dispute between landlord/building management and tenant. Thus, we have determined if un-redacted statements made by witnesses are released, the requester will most likely be able to detect their identity. Lastly, turning over the name of the complainant has a chilling effect on future complainants. If they know their identities can be revealed, they may be less likely to come forward with complaints, especially as they fear retaliation or harassment. In addition, disclosure of this information would constitute an unwarranted invasion of privacy as it relates to a specifically named individual who is not a public official whose identity is not necessary to serve the public interest…. Where the information has been redacted to protect the identities of voluntary witnesses, I find the City may properly redact such information pursuant to Exemption (f). As such, I decline to opine on the claim of Exemption (c) of the Public Records Law to redact the date of birth. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Chritson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

David Shapiro, Esq. SPR25/1279 Page 5 May 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: David Chritson