Michael Hayes v. Wilmington, Town of - Police Department (SPR 20253037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 29, 2025 SPR25/3037 Jamie Miano Senior Records Clerk Wilmington Police Department 1 Adelaide Street Wilmington, MA 01887 Dear Jamie Miano: I have received the petition of Michael Hayes appealing the response of the Wilmington 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 26, 2025, Mr. Hayes requested the following: 1. All emails regarding and or related to Mr. Michael Hayes, that occurred between [a named] Wilmington Police Detective . . . and any member of the Middlesex District Attorney’s Office, which include Assistant District Attorneys . . ., from 2019 to present day. 2. All emails regarding and or related to Mr. Michael Hayes that occurred between any employee of the Wilmington Police Department, which includes [a specified] Detective . . . 3. All emails regarding and or related to Mr. Michael Hayes that occurred between [a named individual] with any employee of the Federal Bureau of Investigations between 2019 and present day. The Department responded on August 1, 2025. Unsatisfied with the Department’s response, Mr. Hayes petitioned this office, and this appeal, SPR25/3037, was opened as a result. Subsequent to the opening of this appeal, the Department provided a further response on October 17, 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 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

Jamie Miano SPR25/3037 Page 2 October 29, 2025 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. Current Appeal In his appeal petition, Mr. Hayes encloses a copy of one responsive email chain that he received in response to his request, and argues the following: Mr. Michael Hayes has serious concerns regarding the content of the email exchange between [two named individuals], for example, the discussion and content of the email exchange between the two government employees can be construed by a reasonable person/citizen as being suspicious and mistrusting behavior. . . . This strange email exchange between two government officials is exactly the type of information that garners further public scrutiny/interest thru the Public Records Law which helps the Public seek Transparency, accountability, and confidence in government officials. Why must [a named individual] best zip his lips and not type further right after receiving the partial redaction? The unredaction of the correspondence/email will help increase Trust, Confidence, and accountability between the Public and the Government. Based on the information provided in his appeal petition, I understand Mr. Hayes objects only to the redaction of the email chain included with his appeal petition, and described above. The Department’s August 1st and October 17th Responses In its August 1, 2025 response, the Department provided records in redacted form, and cited Exemptions (a), (c), and (f) of the Public Records Law for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (c), (f).

Jamie Miano SPR25/3037 Page 3 October 29, 2025 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, 154 (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 August 1st response, under Exemption (a), the Department argues the following: The second category under the exemption includes records deemed exempt under statute by necessary implication Mr. Hayes, Social Security Numbers, are considered not public record. The Wilmington Police Department has redacted the Social Security Numbers where listed. 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).

Jamie Miano SPR25/3037 Page 4 October 29, 2025 First Clause – Personnel 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. 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. 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

Jamie Miano SPR25/3037 Page 5 October 29, 2025 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 1st response, under Exemption (c), the Department argues the following: Exemption (C): This exemption applies to medical files or information and any other materials or data relating to a specifically named individual or individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy, Social Security Numbers, Information pertaining to Juveniles, MA Driver’s License Numbers, Addresses, etc. 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. Exemption (f) is intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Redactions may be appropriate where they serve to preserve the anonymity of complainants and 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); 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 Supreme Judicial Court has held that “the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his [or her] career.” Id. at 438.

Jamie Miano SPR25/3037 Page 6 October 29, 2025 In its August 1st response, under Exemption (f), the Department argues the following: The Wilmington Police Department has redacted information contained within emails, due to the applicability of the following exemption and the reasons set forth below: Exemption F allows the withholding of identifying a witness and their statement. The disclosure of the name(s) and statement(s) of voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. In its October 17th response, the Department further explains the following: The victim/involved party names, addresses and contact information had been redacted throughout each email, during the Redaction process of the Records Request, by the Records Clerk, it was not a redaction performed by the original sender. In the specific email in question, the sender was Assistant District Attorney Andrew Ineson, to Detective Pat Nally. The email had a victim’s/involved party’s name listed after “It sounds like Hayes has been sending intimidating letter”. The redaction to the one specified email in question, was a redaction of a victim/involved party’s name. The redaction was not done by the sender, in this instance, ADA Ineson, the redaction was done by the Records Clerk, during the redactions process, following the Records Request by Mr. Michael Hayes. Based on the information provided in the Department’s responses, where the Department has redacted the identity of a victim and voluntary witness, I find the Office may properly redact such information pursuant to Exemption (f) of the Public Records Law. See G. L. c. 4, § 7(26)(f). Where the Department has met its burden to redact the identity of the victim and voluntary witness under Exemption (f), I find it unnecessary to address the Department’s claims for redacting such information under Exemptions (a) and (c) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Hayes 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).

Jamie Miano SPR25/3037 Page 7 October 29, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael Hayes