Paul F. Zerola, Esq. v. Framingham, City of - Police Department (SPR 20251457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2025 SPR25/1456; SPR25/1457 Colleen Kehew Records Manager Framingham Police Department 150 Concord Street Framingham, MA 01702 Dear Ms. Kehew: I have received the petitions of Paul F. Zerola, Esq., of Zerola & Associates, P.C., appealing the response of the Framingham Police Department (Department) to two requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR25/1456 On March 31, 2025, Attorney Zerola requested “… [the] Police report, Incident report, CAD report, BWC footage, 911 tapes and turrent tapes for incident #25-001911, on 03/29/2025 @ 13:49 hours involving [an identified individual].” The Department assigned this request reference number 2025-1006. SPR25/1457 On March 31, 2025, Attorney Zerola requested “… Animal Control Incident Reports, notes, Orders, Quarantine Orders and reports, Rabies vaccination forms and other reports in the possession of Animal Control for Incident #25-001911, on 03//29/2025 @ 13:49 hours involving [an identified individual].” The Department assigned this request reference number 2025-1007. The Department responded on April 16 and April 18, 2025. Unsatisfied with the responses, Attorney Zerola petitioned this office and these appeals, SPR25/1456 and SPR25/1457, were 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 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 SPR25/1456; SPR25/1457 Page 2 June 5, 2025 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. Status of the Requestor; Reason for the Request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Zerola’s purpose in making the requests has no bearing on the public status of any existing responsive records. The Department’s April 16th and April 18th Responses In its April 16, 2025 response, the Department provided Attorney Zerola with a record responsive to request 2025-1006, redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. The Department further stated that it would be providing body worn camera footage in a separate communication. In its April 18, 2025 response, the Department stated that it had “… coordinated with Animal Control and has confirmed that any publicly releasable materials in relation to this case have been provided as part of the response to your request 2025-1006.” Current Appeals In his May 15, 2025 petitions to this office, Attorney Zerola sought unredacted copies of the responsive records, and stated that the Department had not provided body worn camera footage. Attorney Zerola further contended that the Department had failed to provide or properly withhold several categories of records.

Colleen Kehew SPR25/1456; SPR25/1457 Page 3 June 5, 2025 SPR25/1456 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 16th response, the Department stated: Providing the requested records unredacted would violate Public Law, Exemption G.L. c. 4, § 7(26)(a) Juvenile … In this instance, the Legislature has, by clear implication, exempted records and reports pertaining to minor children from public disclosure. See also, G. L. c. 4, §7, cl. Forty eight (48) specifically defines a minor as “any person under eighteen years of age.” Based on the Department’s response, it is unclear how the cited statute specifically or by necessary implication permits the Department to redact the responsive records. Please be advised that for Exemption (a) to apply, a statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group of individuals or entities. The Department must clarify this matter.

Colleen Kehew SPR25/1456; SPR25/1457 Page 4 June 5, 2025 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. 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). 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. In its April 16th response, the Department stated: Providing the requested records unredacted would violate Public Law, Exemption G.L. c. 4, § 7(26)(c) Privacy. This category applies to “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.”

Colleen Kehew SPR25/1456; SPR25/1457 Page 5 June 5, 2025 Providing the requested records unredacted would violate Public Law, Exemption G.L. c. 4, § 7(26)(c) Medical. This category applies to “The material in question is a part of personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” To the extent the responsive records contain the medical information of a specifically identified individual, such portions may be withheld under Exemption (c) of the Public Records Law. Additionally, I find that the Department has met its burden to withhold personal telephone numbers under Exemption (c). However, the Department has not met its burden to demonstrate that the remainder of its redactions constitute intimate details of a highly personal nature, nor that disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. 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.” Id. 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. Redactions may be appropriate where they serve to preserve the anonymity of the complainant and voluntary witnesses. Antell, 52 Mass. App. Ct. at 248; Reinstein, 378 Mass. at

Colleen Kehew SPR25/1456; SPR25/1457 Page 6 June 5, 2025 290 n.18; 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 Ret. 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 April 16th response, the Department stated: Providing the requested records unredacted would violate Public Law, Exemption G.L. c. 4, § 7(26)(f) Witness. This category states that “Information may be withheld to provide an assurance of confidentiality to private citizens so that they will speak openly about matters under investigation. Accordingly, any 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.” To the extent that the responsive record contains the identifying information of a voluntary witness, the Department may permissibly redact such portions from the responsive record. However, the Department has not met its burden to demonstrate that the remainder of its redactions are exempt from disclosure under Exemption (f). Specifically, the Department did not demonstrate how disclosure of the redacted portions of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. 281, 289-90 (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 this matter. Further, based on Attorney Zerola’s petition and the Department’s response, it is unclear whether the Department possesses additional responsive records. 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). The Department must clarify this matter. SPR25/1457 Based on the Department’s April 18th response, it appears the Department intends to withhold records from disclosure. If the Department 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”).

Colleen Kehew SPR25/1456; SPR25/1457 Page 7 June 5, 2025 Conclusion Accordingly, the Department is ordered to provide Attorney Zerola with a response to the requests, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Attorney Zerola may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Paul F. Zerola, Esq.