Michael Welsh v. Westwood, Town of - Police Department (SPR 20253269)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2025 SPR25/3269 Dolly Rockwell-Andrada Office Manager Records Division Westwood Police Department 588 High Street Westwood, MA 02090 Dear Ms. Rockwell-Andrada: I have received the petition of Attorney Michael P. Welsh appealing the response of the Westwood 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 November 4, 2025, Attorney Welsh requested “the police report concerning a Facebook post [Attorney Welsh] made on June 11, 2025.” The Department responded on November 5, 2025. Unsatisfied with the Department’s response, Attorney Welsh petitioned this office, and this appeal, SPR25/3269, was opened as a result. While this appeal was pending, the Department provided a supplemental response on November 7, 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. 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

Dolly Rockwell-Andrada SPR25/3269 Page 2 November 21, 2025 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. 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, Attorney Welsh’s position as a named party in the record will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. Current Appeal In his appeal, Attorney Welsh states, with regard to Exemption (a) and G. L. c. 41, § 97D, “[t]he incident is a non-threatening social-media ‘memory’ post (‘See you guys soon ❤️’) with old family photos. There is no allegation of physical or threatened harm. Applying §97D here stretches the statute beyond its purpose (reports of abuse between family/household members)… Even if §97D covered some content, [the Department] was required by c. 66 §10(b) and 950 CMR 32.08(4) to release reasonably segregable non-exempt portions (e.g., cover/face sheet, incident number, date/time, officer, and narrative portions that can be redacted to protect identifying information).” The Department’s November 5th and November 7th Responses In its November 5, 2025 response, the Department states that it is withholding the responsive record pursuant to G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law. In its November 7, 2025 response, the Department provided additional information regarding its Exemption (a) claim and further cited Exemption (c) to withhold the requested record. 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

Dolly Rockwell-Andrada SPR25/3269 Page 3 November 21, 2025 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. G. L. c. 41, § 97D provides in relevant part: 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 ... G. L. c. 41, § 97D. In its November 7, 2025 response, under Exemption (a), the Department states: For a matter of record, Mr. Welsh is currently the defendant in an active restraining order with his ex-wife as the complainant. This order has been active since 2019 and was recently extended until November 2026. The mere fact that Mr. Welsh is the defendant in an active 209A restraining order establishes the element of abuse. Under M.G.L c. 41, section 97D ‘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.’ While Mr. Welsh states the incident is about a Facebook ‘memory’ post, the police report describes his ex-wife’s concern and safety for her and her children and that he does not

Dolly Rockwell-Andrada SPR25/3269 Page 4 November 21, 2025 know where they live. This report is inclusive of the broader scope of the domestic history and domestic violence that took place in years prior. 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. In its November 7, 2025 response, the Department stated, “[g]iven the nature of the report and the disclosure of where Mr. Welsh’s ex-wife lives and where his children go to school, exemption C also applies. It is our position that there is no superseding public interest in disclosure of this report and release of the report would create an unwarranted invasion of personal privacy.”

Dolly Rockwell-Andrada SPR25/3269 Page 5 November 21, 2025 In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) and Exemption (c) claims made by the Department to withhold the responsive record, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the record, I will return the record to the Department’s custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Conclusion Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Michael P. Welsh, Esq.