Barbara Burgo v. Nantucket, Town of - Police Department (SPR 20252443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2025 SPR25/2443 Marina Dzvonik Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554 Dear Ms. Dzvonik: I have received the petition of Barbara Burgo appealing the response of the Nantucket 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 9, 2025, Ms. Burgo requested, “a copy of the incident reports for both the Racial Slur and phallic symbol hate crime that was spray painted on the Nantucket African Meeting House in March of 2018 and the hit and run accident … in 2018… I would also like a copy of the depositions taken of all parties connected to the case…” Previous Appeal This request was the subject of a previous appeal. See SPR25/2208 Determination of the Supervisor of Records (August 8, 2025). In my August 8th determination, I found that the Department did not meet its burden to redact responsive records under Exemption (c), and that although the Department could redact the identities of voluntary witnesses under Exemption (f), it was unclear what additional information was redacted under (f). The Department responded on August 18, 2025. Unsatisfied with the Department’s response, Ms. Burgo petitioned this office and this appeal, SPR25/2443, 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). 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

Marina Dzvonik SPR25/2443 Page 2 August 29, 2025 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. The Department’s August 18th response In its August 18, 2025 response, the Department stated: [W]ith respect to the 2018 investigation matter, the Police Department can confirm that it has properly redacted the names and identifying details of the names of voluntary complainants and witnesses in the extensive law enforcement investigation pursuant to Exemption (f). In addition, after a careful, individualized review of the investigation reports requested, in which numerous private citizen witnesses were interviewed, minimal redactions were made pursuant to Exemption (c)… With respect to the police investigation reports requested that are the subject of this appeal, the Police Department has carefully and individually considered the appropriate application of Exemption (c) to the police reports requested, which contain details of a highly personal nature, to determine whether disclosure of the information is such that the public’s right to know outweighs any individual(s) privacy rights, and considered the factors set forth in the PETA case, cited above. In diligently balancing these interests, the Police Department has concluded that it is appropriate to redact minimal information contained in the police reports under Exemption (c). Specifically, in line with its appropriate redactions pursuant to Exemption (f), as addressed above and in the Supervisor’s determination, the Police Department has redacted certain information regarding unresolved allegations contained in the police reports regarding private third-parties interviewed as part of the investigation. The courts as well as the Supervisor of Records have recognized that individuals have a privacy interest in unresolved allegations against them, the public disclosure of which may lead to innuendo and speculation as to the subject’s reputation and/or professional competence.… Accordingly, where an individual has been identified and named, such individual has privacy interests in such allegations, such that the nature of the allegations may be considered intimate details, highly personal in nature….

Marina Dzvonik SPR25/2443 Page 3 August 29, 2025 Finally, disclosure of unresolved allegations may result in personal embarrassment to individuals of normal sensibilities. As a result, after careful consideration of the PETA factors identified above and after a careful review of the record at issue, which include the identities of private third-parties who voluntarily participated in the investigation that may be withheld under Exemption (f), and in light of prior court and Supervisor determinations interpreting the privacy interests embodied in Exemption (c), the Department redacted minimal portions of the police reports given unresolved allegations contained therein. Current Appeal In her appeal to this office, Ms. Burgo stated: This appears to be a letter saying that what you first sent was sufficient, in the Nantucket Police Department’s opinion. It doesn’t in my opinion so, since the Secretary of State’s Office asked to be cc’d and is cc’d here, I will await their response. Also, as you are aware, in that first FOIA request, I included a copy of the police report regarding the hit and run car accident case involving the young son of [an identified individual] on or about August 1, 2018 and since it was not provided to me previously, I thought it would be included with this African Meeting House report and/or the appeal that I did not obtain all that I asked for. I still don’t have all that I asked for in the initial request for information on those two cases, so I will allow the Supervisor of Records to determine next steps. Unclear if additional records exist The Department is advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Based on the information provided in Ms. Burgo’s appeal petition, it is unclear whether the Department possesses additional responsive records. The Department must clarify this.

Marina Dzvonik SPR25/2443 Page 4 August 29, 2025 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). 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

Marina Dzvonik SPR25/2443 Page 5 August 29, 2025 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 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation.

Marina Dzvonik SPR25/2443 Page 6 August 29, 2025 In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (c) and (f) claims made by the Department to redact the responsive record, the Department 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 Department’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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Additionally, the Department is ordered to provide Ms. Burgo with a response regarding whether additional records exit, 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.

Marina Dzvonik SPR25/2443 Page 7 August 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Barbara Burgo