Rachel Hussey v. Blackstone, Town of - Police Department (SPR 20252454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2025 SPR25/2454 Chief Gregory Gilmore Chief of Police Blackstone Police Department 15 St. Paul Street Blackstone, MA 01504 Dear Chief Gilmore: I have received the petition of Rachel Hussey appealing the response of the Blackstone 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 August 5, 2025, Ms. Hussey requested, [A]ll records in the possession of the Blackstone Police Department pertaining to the investigation . . . involving an incident on or about June 28, 2025. . . . Specifically, I request: [1] All reports, narratives, incident logs, case notes, and supplemental reports related to the investigation. [2] All audio and/or video recordings associated with the case, including but not limited to: The video [an identified individual] has referenced as part of this investigation; Any surveillance, cell phone, or third-party recordings obtained by the department; Any in-car or body-worn camera footage. [3] All witness statements, whether written, audio-recorded, or transcribed. [4] All internal communications, memoranda, or emails relating to the investigation. [5] Any chain-of-custody documentation for physical or digital evidence in this case. [6] Any materials submitted to or obtained from the District Attorney’s Office relating to this investigation. The Department responded on August 18, 2025, providing redacted responsive records and withholding other responsive records. Unsatisfied with the response, Ms. Hussey petitioned this office and this appeal, SPR25/2454, was opened as a result. Subsequently, the Department provided a supplemental response on August 22, 2025. 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

Chief Gregory Gilmore SPR25/2454 Page 2 September 3, 2025 Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Hussey’s status will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. Additionally, based on information provided in Ms. Hussey’s appeal, it is unclear if Ms. Hussey may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Ms. Hussey a greater right of access to the responsive records. 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 custodian must provide the responsive records. The Department’s August 18th and August 22nd Responses In its August 18, 2025 response, the Department provided some redacted responsive records to Ms. Hussey’s request and withheld others under Exemptions (a), (c), and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). In its supplemental response sent on August 22, 2025, the Department states: Ms. Hussey complains that the Department should segregate and release nonexempt portions of witness statements, text messages, and video evidence to

Chief Gregory Gilmore SPR25/2454 Page 3 September 3, 2025 the extent possible. Records responsive to Ms. Hussey’s request include two videos, 20 pages of text messages, and four audio recorded witness statements. As the Department stated in its response, videos have been withheld under Exemption (c) to protect the depicted individuals’ sexual identity, as this is sensitive information that they may not want exposed to the public. The text messages and witness statements were withheld under Exemption (f) to protect witness identities. These records cannot be altered in a way that would allow for their partial release while also protecting the information subject to the identified exemptions. The Department does not have the technology to blur videos or remove names from audio recordings. Additionally, even if this was possible, the individuals may still be identified by their voices. The text messages that are being withheld were provided by a witness and involve the requester. Because these messages are between two parties, the requester (the other party involved) would recognize these messages, and their release would reveal the witness’s identity. As such, the Department is unable to release any portion of these records. 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. In its response, the Department cites G. L. c. 41, § 97D, which provides in relevant part:

Chief Gregory Gilmore SPR25/2454 Page 4 September 3, 2025 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. In its August 18th response, the Department states, “[t]he reports you are seeking are regarding allegations of sexual assault. As such, the Department is prohibited from releasing this information to you and the details contained in these reports have been redacted.” Based on the Department’s August 18th response, where the redacted information relates to sexual assault allegations, I find that the Department has met its burden to redact the responsive record under G. L. c. 41, § 97D as it operates through 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). 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.

Chief Gregory Gilmore SPR25/2454 Page 5 September 3, 2025 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. In its August 18th response, under Exemption (c), the Department argues the following: As stated above, the subject matter of this investigation relates to allegations of sexual assault. Additionally, the responsive records include videos revealing the sexual identity of individuals involved. These are intimate details of a highly personal nature. Names of individuals involved have been redacted from emails and responsive videos have been withheld to protect individual’s privacy. Such information may be redacted or withheld because its release may result in an unwarranted invasion of personal privacy to individuals. This information would not shed light on whether government officials are carrying out their duties in an efficient manner. As such, any public interest in the disclosure of this information likely does not outweigh the privacy interest, and this information can be withheld under Exemption (c). In a telephone call between a staff attorney of the Public Records Division and the Department on September 3, 2025, the Department confirmed that the videos being withheld under Exemption (c) contain intimate details of a highly personal nature. Based on that conversation, I find the Department has met its burden of demonstrating how the videos can be withheld in their entirety under Exemption (c). 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

Chief Gregory Gilmore SPR25/2454 Page 6 September 3, 2025 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 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. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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

Chief Gregory Gilmore SPR25/2454 Page 7 September 3, 2025 known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its August 18th response, the Department states, “[w]ritten witness statements have been narrowly redacted to preserve witness identifying information. Other witness statements regarding this matter were recorded and not transcribed. The Department is unable to alter the recordings in a way that would protect the identity of voluntary witnesses to allow for their partial release. Additionally, text messages were provided to the Department to assist in its investigation. Similarly, these messages cannot be redacted to preserve witness identity. As such, these records are being withheld to preserve the anonymity of those who participated in the investigations as voluntary witnesses.” To the extent that the Department redacted the identities of voluntary witnesses, I find the Department has met its burden under Exemption (f) to redact such information from the responsive records. Where the Department may redact the records pursuant to Exemption (f) of the Public Records Law, I find it unnecessary to opine on the Department’s claims to redact names of voluntary witnesses from emails under Exemption (c). Further, in a telephone call with the Department on September 2, 2025, the Department confirmed that the text messages and witness statements could not be redacted in such a way to preserve the anonymity of the voluntary witnesses. Given the text messages and witness statements were withheld under Exemption (f) to preserve the anonymity of voluntary witness, I find that the Department may properly withhold the records from disclosure under Exemption (f). See Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Hussey is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Hussey