Jennifer Perry v. Lexington, Town of - Police Department (SPR 20251929)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2025 SPR25/1929 Donna Dutton Administrative Assistant Lexington Police Department Records Division 173 Bedford Street Lexington, MA 02420 Dear Ms. Dutton: I have received the petition of Jennifer Perry, of Eversource, appealing the response of the Lexington 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 June 27, 2025, Ms. Perry requested a specified motor vehicle report. The Department responded on July 2, 2025, providing a responsive record with redactions. Unsatisfied with the response, Ms. Perry petitioned this office and this appeal, SPR25/1929, 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. Att’y 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 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

Donna Dutton SPR25/1929 Page 2 July 15, 2025 custodian must provide the responsive records. Current Appeal In her appeal petition, Ms. Perry states: I don’t understand why the name of the vehicle operator is redacted on this report. She damaged Eversource property and we would like to pursue for damages. The operator’s name does not arguably fall within any accepted interpretation of the term ‘personnel data or information.’ Accident reports do not include her employment status, any work performance evaluations, payroll records, injury reports or criminal involvement. Nor do they include information about her education and qualifications for future employment. Reading through the CORI act, a police report may be released to a requester after the records custodian has redacted the exempt portions from the record, such as medical information and witness statements. A records custodian may be permitted to withhold an entire report if the identity of witnesses is known to the requester. Such a record could not possibly be redacted in a manner to avoid identification of such witnesses. The operator of the vehicle and witness of the accident are unknown to me. There is no pending investigation, there is no request for her medical records, this request is not for employment purposes, and I am not asking for her home address or contact information. Eversource needs to be able to reach out to the operator’s insurance company and we cannot claim anything without the insured operator’s name. The Department’s July 2nd Response In its July 2, 2025 response, the Department claimed Exemptions (a) and (c) to redact the requested record. To redact the responsive record under Exemption (a), the Department cites the Criminal Offender Record Information (CORI) Act and the Driver Privacy Protection Act. 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

Donna Dutton SPR25/1929 Page 3 July 15, 2025 restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. Criminal Offender Record Information (CORI) In its response, the Department cited the Criminal Offender Record Information (CORI) Act in support of the redactions. G. L. c. 6, § 167 provides in pertinent part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Department states, it redacted some information because it is “protected under CORI[.]” Based on the foregoing, I find the Department has not met its burden to demonstrate how the police report is exempt under the CORI Act. Specifically, it is unclear how the record contains “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167. The Department must clarify this matter.

Donna Dutton SPR25/1929 Page 4 July 15, 2025 Driver Privacy Protection Act Disclosure of certain personal information contained in state motor vehicle records is restricted by the Driver Privacy Protection Act (DPPA). DPPA provides in pertinent part: (a) In general.--A State department of motor vehicles, and any officer, employee, or contractor thereof, shall not knowingly disclose or otherwise make available to any person or entity: (1) personal information, as defined in 18 U.S.C. 2725(3), about any individual obtained by the department in connection with a motor vehicle record, except as provided in subsection (b) of this section; or (2) highly restricted personal information, as defined in 18 U.S.C. 2725(4), about any individual obtained by the department in connection with a motor vehicle record, without the express consent of the person to whom such information applies, except uses permitted in subsections (b)(1), (b)(4), (b)(6), and (b)(9): Provided, That subsection (a)(2) shall not in any way affect the use of organ donation information on an individual’s driver’s license or affect the administration of organ donation initiatives in the States. 18 U.S.C. § 2721(a). “Personal information,” as used in the above statute, is defined as follows: “personal information” means information that identifies an individual, including an individual’s photograph, social security number, driver identification number, name, address (but not the 5-digit zip code), telephone number, and medical or disability information, but does not include information on vehicular accidents, driving violations, and driver's status. 18 U.S.C. § 2725(3). In its July 2, 2025 response, the Department states the report has “been redacted in part in accordance with … United States Code, Chapter 123 of Title 18 (Driver’s Privacy Protection Act)[.]” The Superior Court addressed the application of the Drivers Privacy Protection Act (DPPA) to municipalities in the recent case of Somerville v. Murray. See Memorandum of Decision and Order Re: Plaintiff’s Motion for Judgement on the Pleadings and Defendant’s Cross-Motion for Judgement on the Pleadings Middlesex, City of Somerville v. Rebecca Murray, as Supervisor of Records, Sup. No. 15 81 CV 04911, at 2-3 (December 4, 2019). In Somerville, the Superior Court found that the DPPA “is specific as to what entities it applies to and as to what information is protected.” Id. at 3. In that case, a requestor sought “a list of residential parking permits, including . . . the permit number, issue date, expiration date, vehicle model/make/year, license plate number, first name, last name, address and zip code.” Id. at 2. The court found “that given the specific language in the DPPA, that statute specifically does not

Donna Dutton SPR25/1929 Page 5 July 15, 2025 apply to municipalities and that it does not specifically or by necessary implication exempt from disclosure the data being sought.” Id. at 3. Based on the foregoing, I find that the Department has not met its burden to redact the responsive record under 18 U.S.C. § 2721(a), as it operates Exemption (a) of the Public Records Law. 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 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 states, the report has been redacted because “[t]he disclosure of personal data which may constitute [an] invasion of personal privacy.” Based on the Department’s response, it has not explained how the redacted information constitutes intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, the Department did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. PETA, 477 Mass. at 292. The Department must clarify these matters.

Donna Dutton SPR25/1929 Page 6 July 15, 2025 Conclusion Accordingly, the Department is ordered to provide Ms. Perry 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. 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. Ms. Perry may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jennifer Perry