Alberto Brito v. Framingham, City of - Police Department (SPR 20251512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1512 Colleen Kehew Records Access Officer Framingham Police Department 1 William Welch Way Framingham, MA 01702 Dear Ms. Kehew: I have received the petition of Alberto Brito 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 May 19, 2025, Mr. Brito requested “…all mugshots for all arrests 5/1/25 to 5/15/25 [excluding] juvenile arrests.” The Department responded on May 29, 2025. Unsatisfied with the Department’s response, Mr. Brito petitioned this office and this appeal, SPR25/1512, 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 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. 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 SPR25/1512 Page 2 June 10, 2025 The Department’s May 29th Response In its May 29, 2025 response, the Department cited Exemption (c) of the Public Records Law to withhold the requested records. Current Appeal In his appeal petition, Mr. Brito argues the Department’s response is deficient for the following reasons: [1] Mug shots are presumptively public records… [2] Exemption (c) is misapplied… [3] Failure to conduct the required segregation analysis… [4] Public interest favors disclosure… 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).

Colleen Kehew SPR25/1512 Page 3 June 10, 2025 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 Department stated: The Department seeks to balance the public’s right to know against an individual’s privacy rights, protected in exemption C of the Public Records Law. Examples of “intimate details of a highly personal nature,” referenced in exemption C, can include a number of factors including reputation. In deciding whether there is a privacy interest in the requested records and the weight to be accorded any such interest, we have considered two factors: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; and (2) whether the materials sought contain intimate details of a highly personal nature. The Department must therefore deny this request under exemption C, which applies to “materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” Based on the foregoing, I find the Department has not met its burden to withhold the requested mugshots pursuant to Exemption (c). The Department has not demonstrated how the requested mug shots contain intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also unclear whether this information is available from other sources. PETA, 477 Mass. at 292. Additionally, the Department has not established how any privacy interest in the mug shots is not substantially outweighed by the public interest in obtaining the requested records. Id. Conclusion Accordingly, the Department is ordered to provide Mr. Brito 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. Brito may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Colleen Kehew SPR25/1512 Page 4 June 10, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Alberto Brito