Meg Kerrigan v. Boston, City of - Police Department (SPR 20253160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 5, 2025 SPR25/3160 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Meg Kerrigan, of New England Innocence Project, appealing the response of the Boston 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 May 6, 2025, Ms. Kerrigan requested: the complete investigative file and all records associated with the murder of [an identified individual] on or about November 6, 1990, including any arrest and booking records, crime and incident reports, incident logs, evidence logs/indexes, audio and video records, photographs, interviews, notes, correspondence, memoranda, supplemental reports, and any and all related records not specifically requested. It is my understanding that the Department assigned this request reference number R002288-050625. Previous Appeal This request was the subject of a previous appeal. See SPR25/1486 Determination of the Supervisor of Records (June 6, 2025). In my June 6th determination, I ordered the Department to provide Ms. Kerrigan with a response to the request. The Department responded on July 25, 2025 and July 29, 2025. Unsatisfied with the Department’s responses, Ms. Kerrigan petitioned this office and this appeal, SPR25/3160, was opened as a result. While this appeal was pending, the Department provided a supplemental response on October 28, 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

Christine O’Donnell, Esq. SPR25/3160 Page 2 November 5, 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 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. The Department’s July 25th, July 29th, and October 28th Responses In its July 25, 2025 response, the Department provided responsive “ballistic reports, crime lab reports, photographs, and newspaper articles.” In its July 29, 2025 response, the Department provided additional responsive records redacted pursuant to Exemptions (a), (c), and (f) of the Public Records Law. In addition, the Department also withheld certain responsive records in their entirety pursuant to Exemptions (a) and (f). In its supplemental response on October 28, 2025, the Department clarified its previous response and stated, “the Department inadvertently stated that it was withholding body worn camera footage pursuant to Exemption (a) of the Public Records Law. There is no body worn camera footage that exists. The Department wishes to clarify that it redacted information relating to juveniles under the statutory exemption.” Current Appeal In her appeal petition, Ms. Kerrigan stated, “I am appealing the redactions of all witness information as well as the withholding of witness interviews in their entirety.” It appears Ms. Kerrigan is not appealing the Department’s redactions and withholding of records under Exemption (a), which do not concern witness information.

Christine O’Donnell, Esq. SPR25/3160 Page 3 November 5, 2025 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). 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 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.

Christine O’Donnell, Esq. SPR25/3160 Page 4 November 5, 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. at 290 n.18. 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 known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation.

Christine O’Donnell, Esq. SPR25/3160 Page 5 November 5, 2025 Regarding the withheld “witness information” and “witness interviews,” the Department argued the following in its July 29, 2025 response under Exemptions (c) and (f): Included in this response is a 28 page Boston Police Homicide Unit Investigation Report. The Department redacted portions of this report pursuant to exemptions (c) and (f) of the Public Records Law… The Department is redacting witness names, home addresses, phone numbers, and other personal identifying information… The Department is redacting witness names and statements pursuant to Exemption (f) in order to maintain the confidentiality of witnesses... The Department is providing the following records: homicide case file; investigative notes, investigative reports; police reports; miscellaneous information, and subpoenas. The Department redacted names, address other personally identifiable information as well as witness names, statements and other identifying information from these records under Exemptions C and F of the public records law for the reasons previously provided herein. The Department has located the following records responsive to this request: transcripts of two civilian witnesses; investigator notes; records containing names and addresses of civilians; record identifying the victim’s next of kin; and, OCME reports. The Department is withholding these records in their entirety… The Department is withholding in its entirety an interview transcript of two voluntary witnesses under Exemption F. The transcript is 63 pages in total and the interviews were conducted by Boston Police Homicide Unit detectives. There is no way to redact this record without identifying the witnesses. Disclosing the statements of these witnesses would reveal their identity… In this case redactions alone are not appropriate because those who are familiar with the individuals being interviewed, the voluntary witnesses, will be able to identify the witnesses by their statements... Providing segregable portions of these requested records is not possible because disclosure would identify voluntary witnesses and if disclosed would have a chilling effect on future law enforcement efforts... The Department is also withholding a record of handwritten investigator notes under Exemption F. These notes are notes written by a law enforcement official. The notes summarize witness interviews and witness statements. There is no way to redact this record without identifying the witnesses… The Department is withholding records that contain the names, phone numbers, and addresses of specific individuals. One record is 12 pages and the other record is three pages. The only information on these records is names, addresses, and phone numbers of specific individuals and there is no way to redact the information. In other words, if the records were produced, it would be pages of black boxes…

Christine O’Donnell, Esq. SPR25/3160 Page 6 November 5, 2025 Based on the Department’s response, I find that the Department has met its burden under Exemption (f) to redact from the records the identities and any information that will directly or indirectly identify any complainants or voluntary witnesses. 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). Further, where the Department has explained how the withheld records contain identifying information of civilian complainants and voluntary witnesses who may be identified by those who are familiar with the individuals being interviewed, I find that the Department has sufficiently demonstrated how disclosure of the identified records, even with redaction, would compromise effective law enforcement by discouraging the cooperation of individuals who require assurances of confidentiality so that they will cooperate with investigations (the “chilling effect”). Consequently, the Department has met its burden to withhold these records under Exemption (f) of the Public Records Law. Where the City has met its burden to redact and withhold the responsive records under Exemption (f), I decline to opine on the applicability of Exemption (c) to the responsive records. Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Kerrigan 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 of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Meg Kerrigan