James M. Crowley v. Cambridge, City of - Office of the City Solicitor (SPR 20252040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2025 SPR25/2040 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of James Crowley appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 17, 2025, Mr. Crowley requested, “copies of all emails, correspondence, reports, notes, photographs, recording, and any other item related to, created as a result of, or provided in connection with Cambridge Police Department Professional Standards Unit, Staff Investigation SI-2018-004.” The City provided a response on July 1, 2025, citing Chawla and seeking clarification on the request due to its lack of particularity. On July 1, 2025, Mr. Crowley responded and provided a specific search term as clarification. Previous Appeal and Petition This request was the subject of a previous appeal and time petition. See SPR25/1915 Determination of the Supervisor of Records (July 15, 2025) and SPR25/2039 Determination of the Supervisor of Records (July 18, 2025). In my July 18th determination, I found that the City had established good cause for a time extension of thirty (30) business days. In my July 15th determination, the City provided a supplemental response on July 14, 2025. In the City’s supplemental response, the City produced redacted responsive records and provided a fee estimate for further responsive records. Unsatisfied with the City’s July 14th response, Mr. Crowley petitioned this office and this appeal, SPR25/2040, 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 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

Seah Levy SPR25/2040 Page 2 July 25, 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. 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 custodian must provide the responsive records. Fee Estimates - Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Appeal In his appeal petition, Mr. Crowley states: Crowley has received a heavily redacted investigative report, and no other responsive documents. What I mean by heavily redacted is that 96 pages have been altogether removed from the 127-page report, and approximately 25 pages are almost entirely blacked out. The names of the complainants and other

Seah Levy SPR25/2040 Page 3 July 25, 2025 witnesses are redacted, notwithstanding the fact that all are now known to be fellow police officers…. Crowley urges the Supervisor to Order the City to within 10 days: [1] Provide a clean copy of the 127-page report; [2] Produce all documents in the City bearing the case number: SI-2018-004; [3] Produce all documents in the City contained in the case file of case number: SI-2018-004; and [4] Waive all conceivable fees. Fee Waivers Please be advised that G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. G. L. c. 66, § 10(d)(v). Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). The City’s July 14th Response In its July 14, 2025 response, the City provided redacted responsive records to Mr. Crowley’s request, and provided a fee estimate of $6,750.00 for all remaining records. Fee Estimate In its fee estimate, the City states: The records in question contain materials including attorney-client privileged documents and emails, as well as an extensive number of emails and reports from the Cambridge Police Department. The records in question involve personnel who work in sensitive areas, such as the Domestic Violence Unit and Criminal Investigation Section. Included in these records are materials that contain references to, and information regard, matters of sexual assault, rape, domestic violence, and child abuse. The City anticipates redactions pursuant to law, including, but not limited to, [G.

Seah Levy SPR25/2040 Page 4 July 25, 2025 L. c. 41, § 97D], G. L. c. 119, § 51F, and G. L. c. 6, § 167. Also present is information exempt pursuant to the Public Records law, including the identity of reporting witnesses, medical information, personnel information, and information of a personal and intimate nature. Based upon a review of these records, and the work on the records in question to determine the pace of redactions to these records, the City anticipates that this response will require a minimum of 270 hours of work. To assist in producing a faster response, the City has also provided, within the cost estimate, some suggestions as to how to narrow this request to reduce fees and speed up the final production. However, based on the current request, the City anticipates that the staff time and resources represented by this request will place a heavy burden on the City, and in particular on the Law Department and Public Records Office. The personnel who will handle the review and redaction of these records will be those individuals typically involved in the response to public records requests, and the time involved in this response will be to the detriment of other Public Records requesters, who may have their responses delayed as a result…. I have searched for and located records responsive to your request. Based on this search, I have put together the following cost estimate: [1] 11 Audio Files (Interviews) [2] 9 Video Files (Interviews) [3] Approximately 170 to 190 documents in the nature of exhibits, P650 reports, and other appendix related materials [4] Approximately 1,461 emails, with attachments, for a total of approximately 3,100 records. These numbers are the result of an email search conducted within all accounts for the domain names “cambridgepolice.org” and “cambridgema.gov,” since the date of January 1, 2018, through to the present, and including the keyword “SI-2018-004.” Under 950 CMR 32.06(2)(f) and 32.07, the City is entitled to assess fees for search, segregate, review, and redaction time expenses as defined in 950 CMR 32.02, based on the hourly rate of the lowest paid employee capable of performing the task or no more than twenty five dollars ($25) per hour, and provide the requester with an estimate of fees to be incurred prior to providing the documents responsive to the public records request. The City is also entitled to assess charges for the actual cost of postage, and for copying costs at $0.05 per page. As a courtesy, the City will waive the per page cost of the first fifty pages of 8 1/2 by 11 inch or 8 ½ by 14 inch paper if any paper copies of these records are requested. Therefore, prior to providing you with any documents in response to your public records request, the City hereby provides you with the below-outlined cost estimate for search time expenses, postage fees, and per page copying fees associated with responding to your request.

Seah Levy SPR25/2040 Page 5 July 25, 2025 The City anticipates, based on one hour of work performed on the emails located which are responsive to this request, that review and redaction of these emails and attachments will require a minimum of 100 hours of work. ($2,500). Additionally, over one hour of work has already been conducted to locate and export these emails. The City anticipates that specialized software only available to certain City staff with relevant training will be necessary to review and redact the audio and video files relevant to this response. I estimate that this will require a minimum of 120 hours of work. ($3,000). For the remaining records, the City estimates approximately 50 hours of time to review and redact these documents. ($1,250)[.] As outlined above, the City’s estimated cost for providing you with a response to your public records request is $6,750.00 less $50 pursuant to 950 CMR 32.07(m)(1). Accordingly, if you wish to proceed with this request, please remit a check in the amount of $6,700.00 payable to the City of Cambridge, directed to my attention as follows: Seah Levy, Public Records Access Officer, Law Department, City Hall, 795 Massachusetts Avenue, Cambridge, Massachusetts 02139. The City will begin work on your public records request once your payment has been received…. Additionally, I would like to suggest the following methods to assist in reducing this time and cost estimate, to eliminate unnecessary work and expense: [1] Where an audio or video file has a corresponding written transcript, it will be much quicker and easier to review, redact, and provide the written transcript only. [2] Where an email contains an attachment which is a document previously provided in the appendix materials or exhibits, the elimination of these attachments from the email response is recommended. This will greatly reduce the number of records which need to be reviewed and redacted from the email search. In a telephone call between a staff attorney of the Public Records Division and the City on July 24, 2025, the City confirmed that it will only charge a fee for redactions required by law. Although the City appears to be assessing fees for a total of 270 hours to produce responsive records, it is unclear why the City requires this much time to search, segregate and redact the responsive records. Particularly, it is unclear how many minutes it will take to review and redact each email, audio and video file, how many minutes or hours are in each audio and video file, and how many pages there are in the “remaining records.” Accordingly, the City must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable).

Seah Levy SPR25/2040 Page 6 July 25, 2025 I encourage Mr. Crowley and the City to communicate in order to facilitate producing records efficiently and affordably. Mr. Crowley may wish to narrow the parameters of the request or include applicable time periods or factors to enable the search to be processed. Redacted Final Report Regarding the redacted responsive records, the City states: The City is providing a copy of the 127-page Final Report for this matter with no fees to the requester…. Due to the complexity of redacting this report, additional time was required. Due to the size of the release find a link in this letter to the requested report. Some information has been redacted, as this information is exempt from disclosure for the following reasons: [1] Pursuant to Exemption G. L. c. 41, § 97D under G. L. c. 4 § 7(26)(a) of the Public Records law. This exemption protects records which pertain to rape, sexual assault, or domestic violence. [2] Pursuant to Exemption G. L. c. 119, § 51F under G. L. c. 4 § 7(26)(a) of the Public Records law. This exemption protects records which pertain to reports of child abuse or neglect. [3] To protect the privacy of an individual and to protect confidential personnel information – Exemption G.L. c. 4 § 7(26)(c). [4] To protect the privacy of an individual and to protect confidential medical information – Exemption G.L. c. 4 § 7(26)(c). [5] To protect the privacy of an individual and to protect personal information of an intimate nature – Exemption G.L. c. 4 § 7(26)(c). [6] To protect the privacy of a reporting witness – Exemption G.L. c. 4 § 7(26)(f). In a telephone call between a staff attorney of the Public Records Division and the City on July 24, 2025, the City confirmed that the report was too large to send via email, so the report was provided through a link. However, this office is not able to open the link. 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

Seah Levy SPR25/2040 Page 7 July 25, 2025 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 response, the City cites G. L. c. 41, § 97D, which provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276… G. L. c. 41, § 97D. Also in its response, the City cites G. L. c. 119, § 51F, which provides in relevant part: The department shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order; provided, however, that the department, upon request, may release this data and information to a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent. The commissioner shall establish rules and regulations

Seah Levy SPR25/2040 Page 8 July 25, 2025 governing the availability of such data and information. Pursuant to chapter 18C, the child advocate shall have access to the information in the registry. G. L. c. 119, § 51F. 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). First Clause – Personnel and Medical Information While statutorily exempting personnel information from the expansive definition of public records, the Legislature did not explicitly define “personnel [file] or information.” G. L. c. 4, § 7(26)(c). Judicial decisions advise that the term is neither rigid, nor exact, and that the determination is case-specific. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass App Ct 1, 5 (2003). The custodian’s classification of materials as “personnel information” is not conclusive. Wakefield Teacher’s Ass’n v. Sch. Comm. of Wakefield, 431 Mass. 792, 798 (2000). Instead, the nature or character of the documents, as opposed to the documents’ label, is crucial to the analysis. See Worcester Telegram & Gazette Corp., 436 Mass. at 386. The Massachusetts Supreme Judicial Court (Court) has refined the analysis to be employed when considering the public record status of personnel records. The Court has held that personnel information that is “useful in making employment decisions regarding an employee” may be withheld pursuant to the first clause of exemption (c). Wakefield Teacher’s Ass’n, 431 Mass. at 798, quoting Oregonian Publ. Co.v. Portland Sch. Dist. No. 1J, 329 Or. 401 (1999). The Court further defined those records that may be withheld as personnel information to include, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Wakefield Teacher’s Ass’n, 431 Mass. at 798. Medical information that is of a personal nature and relates to a specifically named individual is 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. Id. 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).

Seah Levy SPR25/2040 Page 9 July 25, 2025 Second Clause – Privacy Analysis under the second clause of 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. 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 the second clause of 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). 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. 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

Seah Levy SPR25/2040 Page 10 July 25, 2025 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. 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. 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 disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a), (c), and (f) claims made by the City to redact the responsive record, the City must provide this office with an un-redacted copy of the record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the City’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Seah Levy SPR25/2040 Page 11 July 25, 2025 Order Accordingly, the City is ordered to provide this office with an un-redacted copy of the responsive record regarding the Exemptions (a), (c), and (f) claims for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: James Crowley