Ryan Kath v. Hopkinton, Town of - Police Department (SPR 20253124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2025 SPR25/3124 Susan Schuler Public Records Officer Hopkinton Police Department 74 Main Street Hopkinton, MA 01748 Dear Mr. Schuler: I have received the petition of Ryan Kath, of NBC10 Boston, appealing the response of the Hopkinton 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 October 21, 2025, Mr. Kath requested the following: All Hopkinton police reports involving [a named individual] in 2016, 2017 and 2018. This should include, but not be limited to, report #16-0119315 and report #17-001532. Please also provide a copy of the report associated with an arrest of [the individual] on 9/25/97. The Department responded on October 23, 2025. Unsatisfied with the Department’s response, Mr. Kath petitioned this office, and this appeal, SPR25/3124, 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). 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 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

Susan Schuler SPR25/3124 Page 2 November 6, 2025 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 October 23rd Response In its October 23, 2025 response, the Department provides numerous responsive records, and cites Exemptions (a) and (c) of the Public Records Law for withholding the responsive records. See G. L. c. 4, § 7(26)(a), (c). In his appeal petition, Mr. Ryan argues, among other things, the following: The exemptions have been applied in an overbroad nature, particularly in the incident report narratives. It is totally reasonable to redact personal info like address, phone, vehicle plate, etc. or the victims of a sexual assault. However, there should be segregable portions of the narrative that can be publicly released that still provide context about the nature of the incident. I am specifically appealing the overbroad exemptions used on pages: 12-13; 16; 31-32; 86-95; 101- 104; 106-107. If necessary, I would like the Supervisor of Records to provide an in camera review of these reports. 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

Susan Schuler SPR25/3124 Page 3 November 6, 2025 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, under Exemption (a), the Department cites G. L. c. 41, §§ 97D and 98F, which provide in pertinent part as follows: 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. Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age.

Susan Schuler SPR25/3124 Page 4 November 6, 2025 G. L. c. 41, § 98F. In its response, under Exemption (a), and the statutes cited above, the Department argues the following: Exemption A,” G.L. c. 4, § 7(26)(A), exempts from disclosure records that are “specifically or by necessary implication exempted from disclosure by statute.” As you and the public are aware from recent press reports and other public sources, [the individual] was recently convicted of (among other crimes) indecent assault and battery. Records and information pertaining to that crime and certain other crimes are protected by statute, and the Police Department may not disclose that information. Those statutes include G.L. c. 41, § 97D and c. 41, § 98F. Based on the Department’s response, as some of the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in redacting those specific records under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports and communications “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Further, where the Department has redacted “information concerning responses to reports of domestic violence, rape or sexual assault,” I find that the Department may properly redact such information from the records pursuant to G. L. c. 41, § 98F, as it operates through Exemption (a) of the Public Records Law. 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). First Clause – Medical and Personnel Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987).

Susan Schuler SPR25/3124 Page 5 November 6, 2025 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. In its October 23rd response, under Exemption (c), the Department argues the following: In addition to Exemption A, the Department would also redact information concerning indecent or sexual assaults, under Exemption C (including victim names). . . . With respect to such crimes, information is highly sensitive and, for the same reasons it is protected by statute, it is also entitled to protection under Exemption C. Moreover, to the extent that some of that information might fall outside of a statutorily protected class of information (e.g., not strictly a “report” of such a crime), to the extent that it relates to the same, the Department views it as highly intimate and personal and information that, if disclosed, could cause not just embarrassment but harm to the individual in question. The Department therefore views the privacy interest as outweighing any public interest in the information. The Department has also redacted certain other information under exemption c. The records you requested contain information that pertains to third parties, not Mr. Sismanis, who had no involvement in the crimes alleged against Mr. Sismanis. The information concerning those third parties includes their names and, in some cases, vehicle license plate numbers, VIN numbers, dates of birth, social security numbers, home addresses, and phone numbers. Information such as vehicle license plate numbers, VIN numbers, dates of birth, social security numbers, home addresses, and phone numbers is sensitive personal information that, either standing alone or when aggregated with other sources and information, would be viewed as an invasion of personal privacy and could create an increased

Susan Schuler SPR25/3124 Page 6 November 6, 2025 risk to such individuals of fraud or identity theft. Further, to the extent that other individuals are identified by name in these records, we have redacted those names where your request seeks information concerning Mr. Sismanis, to protect those individuals’ privacy. Finally, the Department has also redacted certain information concerning Mr. Sismanis, including his home address and phone number. As you will see in the enclosed records, Mr. Sismanis has been the target of recent threats and we have therefore redacted his home address and phone number from these records. Based on the Department’s response, where the Department has redacted vehicle license plate numbers, VIN numbers, social security numbers, and personal phone numbers, I find the Department may properly redact such information under Exemption (c). However, it is unclear how all of the remaining redacted information constitutes intimate details of a highly personal nature, nor how disclosure of such information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the remaining withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. Records in Existence In his appeal petition, Mr. Kath argues the following: For some reason, the incident number and date on most of the reports are the same. If you look, you’ll see incident number 02-004072 and a date of 5/17/02 repeated continuously. This means if the date does not appear in the narrative, it is impossible to know the actual date the report was filed. These records are not accurate. I would like to receive incident reports with the correct incident number and date/time. Please be 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). Further, 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). In this case, based on the date of the records provided by the Department, and the information provided in Mr. Kath’s appeal petition, it is unclear whether the Department possesses additional records responsive to Mr. Kath’s request. If the Department does possess

Susan Schuler SPR25/3124 Page 7 November 6, 2025 additional responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Mr. Kath 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. Mr. Kath may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Ryan Kath