Laura H. Ortiz v. Essex District Attorney's Office (SPR 20252323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 18, 2025 SPR25/2323 Matthew Patalano, Esq. Assistant District Attorney Essex District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Patalano: I have received the petition of Laura H. Ortiz appealing the response of the Essex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 2, 2025, Ms. Ortiz requested the following: [1] Copy of all police worn body cam or other videos that are responsive to the [identified individual] alleged shooting of her at her home on Phillips Brooks Road, by a peer police officer, on Monday June 30th (or if applicable July 1st- July 2nd), on or near or just after 6 pm through the full length of the videos depicting the entire encounter), all videos worn by any North Andover Police Department officers at this scene or other for example from a police vehicle or surveillance (including from Massachusetts State Police Officers or vehicles)… Timeline June 30, 2025 - July 2, 2025… [2] Copy of any forwarded or retained North Andover Police Departments current/last updated policies on their departments use of force policies - including: Use of Force Definitions; Authorized Use of Force; Duty to Intervene; Threatening the Use of Force or De Escalation; Authorized Use of Deadly Force; Use of Force Reporting and Post Incident Requirements; Supervisor Force Review or Responsibilities; Notification of Firearm Discharges; Written Reports on Firearm Discharges; Use of Unauthorized Weapons; Use of Neck Restraints and Chokeholds; Civil Disturbances; Use of Chemical Agents including Post Treatment/Medical Aid; Use of Conducted Energy Devices (CED) including Subject Factors or Situational Factors or Downloading/Reporting or Post Exposure Treatment/Medical Aid; Use of Impact Weapons or Treatment/Medical Aid; Maximal Restraint Technique; Less Lethal 40mm Launcher and Impact 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

Matthew Patalano SPR25/2323 Page 2 August 18, 2025 Projectiles; Remote Restraint Device…Timeline: In effect in 2025 or when last updated or forwarded to EDAO by NAPD or retained… The Office responded on July 7, 2025, July 16, 2025, and July 21, 2025. Unsatisfied with the Office’s responses, Ms. Ortiz petitioned this office and this appeal, SPR25/2323 was opened as a result. While this appeal was pending, the Office provided a supplemental response on August 11, 2025. 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. The Office’s July 7th, July 16th, and July 21st Responses In its July 7, 2025 response, the Office cited Exemption (f) of the Public Records Law to withhold records responsive to Item 1 of the request. With regard to Item 2, the Office stated, “[a]s to the North Andover Police Department’s policies, you will need to reach out to their office to obtain those.” Subsequently on July 7, 2025, Ms. Ortiz modified her request to seek the following: [1] Copy of anything in the case file, that at this time is considered public information and releasable, for the [identified individual] alleged shooting of her at her home on Phillips Brooks Road, by a peer police officer, on Monday June 30th (or if applicable July 1st-July 2nd), on or near or just after 6 pm through, related in any way to the entire encounter or North Andover Police Department officers at this scene or other (including from Massachusetts State Police Officers)… Timeline June 30, 2025 - July 7, 2025…

Matthew Patalano SPR25/2323 Page 3 August 18, 2025 [2] Copy of any forwarded public records request already fulfilled, that released public records related in any way to the [identified individual] alleged shooting of her at her home on Phillips Brooks Road, by a peer police officer, on Monday June 30th (or if applicable July 1st-July 2nd), on or near or just after 6 pm through, related in any way to the entire encounter or North Andover Police Department officers at this scene or other (including from Massachusetts State Police Officers)... Timeline June 30, 2025 - July 7, 2025… In its July 16, 2025 response, an attorney for the Office stated, “I am working to compile all of the various files and documents involved with this case so that I can review them and send you what we have that is public. Given the recency of this incident, we do not have a centralized location yet for these documents, so it will take some time to gather everything.” In its July 21, 2025 response, the Office again cited Exemption (f) to withhold records responsive to Item 1 of the modified request. Regarding Item 2 of the modified request, the Office provided a “response we have given to the only other public records request we received on this incident through our official records request email,” with “contact information” of the requestor redacted. Current Appeal In her appeal petition, Ms. Ortiz stated, “[w]e appeal [the Office’s] substantive responses and failure to produce records that exist, failure to state any applicable exemptions, failure to state amount of withheld responsive records of the records existing and inadequate custodial index or privilege log and failure to custodian records in a[n] organized or retrievable manner and excessive redactions…” In its supplemental response on August 11, 2025, the Office cited G. L. c 66, § 10 as it operates through Exemption (a) of the Public Records Law, as well as Exemption (c), in support of redacting the contact information of the requestor from the record responsive to Item 2 of the modified request. In an email to this Office on August 11, 2025, Ms. Ortiz reiterated her objections to the Office’s prior responses and stated: We appeal [the Office’s] new substantive response… we object to how these claimed exemptions would even at all apply, and show the RAO incorrectly was blanketing exemptions when the responsive records was clearly [a] public records request and not a 911 call or having any expectations of privacy… [T]he response was not clear on how or why these records produced would qualify at all to be in any way be exempt from disclosure under public records laws given this was a public records request from a news journalist and EDAO redacted the news journalists name, the news journalists email address of a news company business, news journalist phone number, the news company logo and redacted the body and

Matthew Patalano SPR25/2323 Page 4 August 18, 2025 content of the public records request from this news journalist without sufficient detailed explanation. 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. G. L. c 66, § 10 In its August 11th response, the Office cited G. L. c 66, § 10, which primarily concerns the process of making requests for public records under the Public Records Law, as well as requirements related to written responses, extensions of time, and fees. 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).

Matthew Patalano SPR25/2323 Page 5 August 18, 2025 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. This clause 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 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). This clause 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. 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, 378 Mass. at 290 n.18. 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.” See Reinstein, 378 Mass. at 289-90.

Matthew Patalano SPR25/2323 Page 6 August 18, 2025 The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. Modified Request Item 1 – Case File Under Exemption (f), the Office stated: Regarding your first request, our office has determined that the file cannot be released under the investigatory exception. The materials in our files are not public records because they are “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.”… Please feel free to send a subsequent request in the coming days and, should the status of the investigation change, we may be able to release records at that later date. Although the Office states that the records in the case file relate to an ongoing investigation, it is unclear how all of the responsive records can be withheld in their entirety under Exemption (f). Here, the Office did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive records “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). It is also unclear how the records in their entirety contain confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. Additionally, the Office did not identify the responsive case file records it possesses that it intends to withhold. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Therefore, the Office must identify the records it has in its possession that it withheld under Exemption (f). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must clarify these matters.

Matthew Patalano SPR25/2323 Page 7 August 18, 2025 Modified Request Item 2 – Redacted Contact Information In its August 11th response, under Exemption (a), the Office stated, “[the redacted contact information] is excluded ‘by necessary implication’… G. L. c 66, § 10 clearly demonstrates legislative intent that anyone should feel free to access public records without fear of harassment.” Based on the Office’s response, I find the Office has not met its burden to redact the responsive record pursuant to G. L. c 66, § 10 as it operates through Exemption (a) of the Public Records Law. Where G. L. c 66, § 10 concerns the process of making requests for public records under the Public Records Law, as well as requirements related to written responses, extensions of time, and fees, it is unclear how G. L. c 66, § 10 specifically or by necessary implication prohibits the Office’s disclosure of the redacted “contact information.” Please be advised that for Exemption (a) to apply, a statute must either expressly state that the withheld information is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Office must clarify this matter. Under Exemption (c), the Office stated: …[T]he contact information of the email requester has been withheld for privacy concerns. We believe that releasing requesters’ contact information generally would chill the public’s ability and willingness to access our public records… Where “[t]he primary purpose of the [public records law] is to give the public broad access to governmental records,”… the privacy interest of the requester to feel safe in asking for records outweighs the public’s interest in knowing other requesters’ contact information… [W]e believe that, if the public were to learn that we will release their contact information upon request, then they may not be as comfortable utilizing the service for fear of being accosted. This seems particularly at risk here where Ms. Ortiz could not provide me with a legitimate reason why she might need this information. We want to ensure everyone feels safe to request public records, and we believe that allowing anyone to access the contact information of any other requester would hinder our ability to ensure that feeling of safety is maintained… To the extent the record contains private “contact information” of the requestor such as a personal phone number and email address, the Office may permissibly withhold such portions from disclosure under Exemption (c). However, where Ms. Ortiz alleges the Office has redacted a news journalist’s name, as well as the email address and phone number of a news journalist in their professional capacity, and “the news company logo and the body and content of the public records request,” I find that the Office has not demonstrated that all of the redacted information constitutes details of a highly personal nature or that the disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. The Office must clarify these matters.

Matthew Patalano SPR25/2323 Page 8 August 18, 2025 Conclusion Accordingly, the Office is ordered to provide Ms. Ortiz 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. Ms. Ortiz may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura H. Ortiz