Andrew daMota v. New Bedford, City of - Police Department (SPR 20251515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 2, 2025 SPR25/1515 Romina Moniz Central Records Access Officer New Bedford City Solicitor’s Office 133 William Street New Bedford, MA 02740 Dear Ms. Moniz: I have received the petition of Andrew daMota, Esq. appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 30, 2025, Attorney daMota requested the following records related to an identified officer of the New Bedford Police Department: [1] All civilian complaints against this officer. [2] All internal investigations and disciplinary history relating to above listed officers. [3] All documents supporting or relating to such investigations including the outcome. The City responded on May 14, 2025. Unsatisfied with the response, Attorney daMota petitioned this office and this appeal, SPR25/1515, 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 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

Romina Moniz SPR25/1515 Page 2 June 2, 2025 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 May 14th Response In its May 14, 2025 response, the City informed Attorney daMota that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law. Current Appeal In his May 29, 2025 petition to this office, Attorney daMota objected to the withholding of responsive records, on the grounds that the records were related to an investigation of law enforcement misconduct. 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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.

Romina Moniz SPR25/1515 Page 3 June 2, 2025 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 May 14th response, the City stated: The City withholds the three records as personnel records relating to a specifically named employee pursuant to G.L. c. 4, § 7(26)(c). Exemption (c) applies to: “personnel and medical files. . . ” G.L. c. 4, § 7(26)(c); Wakefield Teachers Association v. School Committee, 431 Mass. 792, 731 N.E.2d 63 (2000). Personnel information includes employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information; information that is useful in making employment decisions regarding an employee. Under Massachusetts Public Records Law such information is exempt from public disclosure. Id. As such, the three potentially responsive records are withheld. The text of 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, 11-12 (2024) (the privacy exemption cannot justify the withholding of records related to the investigation of a police shooting by a district attorney). This is true regardless of whether the investigation ends with a finding of police misconduct. Id. Where the requested records concern civilian complaints against a law enforcement officer and investigations into that officer’s conduct, I find that the City has not met its burden to withhold the requested records under Exemption (c) of the Public Records Law. Conclusion Accordingly, the City is ordered to provide Attorney daMota with a response to the request, 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 daMota may appeal the substantive nature of the City’s response within ninety days. See 950 C.M.R. 32.08(1).

Romina Moniz SPR25/1515 Page 4 June 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Andrew daMota, Esq.