Brian Petrini-Smith v. Framingham, City of - City Clerk (SPR 20252714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 25, 2025 SPR25/2443 Marina Dzvonik Records Access Officer 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 Appeals This request was the subject of previous appeals. See SPR25/2208 Determination of the Supervisor of Records (August 8, 2025) and SPR25/2443 Determination of the Supervisor of Records (August 29, 2025). In my August 29th determination, I ordered the Department to provide this office with un-redacted copies of the responsive records for in camera inspection. The Department provided the records and I would like to thank the Department for its cooperation. 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 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 September 25, 2025 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 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…. Finally, disclosure of unresolved allegations may result in personal

Marina Dzvonik SPR25/2443 Page 3 September 25, 2025 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. 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.

Marina Dzvonik SPR25/2443 Page 4 September 25, 2025 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 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

Marina Dzvonik SPR25/2443 Page 5 September 25, 2025  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. In Camera Review Upon in camera review, and in conjunction with the Department’s August 18th response, I find that where the Department has redacted the identifying information of voluntary witnesses, the Department may properly redact such information under Exemption (f). Consequently, where the Department has met its burden to redact the information under Exemption (f), I find it is unnecessary to address the Department’s claims for redacting the information under Exemption (c). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Burgo 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: Barbara Burgo