Brian Petrini-Smith v. Framingham, City of - Police Department (SPR 20253332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3332 Colleen Kehew Records Access Officer Framingham Police Department 1 William Welch Way Framingham, MA 01702 Dear Ms. Kehew: I have received the petition of Brian Petrini-Smith appealing the response of the Framingham 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 9, 2025, Mr. Petrini-Smith requested the following: [1.] Attendance records for Framingham Police Officer [a named individual] between April 1, 2025 and the present [2.] Framingham police key fob records for Framingham Police Officer [the named individual] between April 1, 2025 and the present [3.] [A]ny and all complaints or investigations into Framingham Police Officer [the named individual] [4.] Attendance records for Framingham Police Officer [another named individual] between April 1, 2025 and the present [5.] Framingham police key fob records for Framingham Police Officer [the named individual] between April 1, 2025 and the present [6.] [A]ny and all complaints or investigations in Framingham Police Officer [the named individual] [7.] Framingham police key fob records for any member of the drug unit from April 1, 2025 to the present I understand the Department assigned reference number 2025-3466 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/3055 Determination of the Supervisor of Records (October 30, 2025). In my October 30th determination, I found that the 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

Colleen Kehew SPR25/3332 Page 2 November 26, 2025 Department had not met its burden to withhold responsive records pursuant to Exemptions (a), (b), (c), (f), and (n) of the Public Records Law. Subsequently, the Department responded on November 10, 2025. Unsatisfied with the Department’s response, Mr. Petrini-Smith petitioned this office, and this appeal, SPR25/3332, 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 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 November 10th Response In its November 10, 2025 response, the Department provides records responsive to Items 1 and 4 of the request, and cites Exemptions (c), (f), and (n) of the Public Records Law for withholding other records. See G. L. c. 4, § 7(26)(c), (f), (n). 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).

Colleen Kehew SPR25/3332 Page 3 November 26, 2025 First Clause 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 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

Colleen Kehew SPR25/3332 Page 4 November 26, 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. 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;

Colleen Kehew SPR25/3332 Page 5 November 26, 2025  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. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in

Colleen Kehew SPR25/3332 Page 6 November 26, 2025 demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Items 1 and 4 Regarding Items 1 and 4, in its November 10th response, the Department argues the following: [Attendance] records for a portion of the time period requested, which are not tied to ongoing investigations, have been provided. Producing the attendance records in full would reveal patterns, safe locations, surveillance timing, or target activity. For instance, redacting only confidential shift or location information only for specific shifts involved in the ongoing investigation would, when combined with non-redacted information, reveal shift patterns and confidential investigatory information through context. Release of this information could tip targets, expose deployment cadence, or reveal nonpublic investigative methods. Attendance records and shift information for specific members of the task force would reveal movement patterns of drug unit officers and could endanger personnel and operations if released. In this case, information on covert investigations, staffing levels, and shift patterns could all be revealed through the public release of this information. Based on the reasonable judgment of the custodian, disclosure of attendance records for the full time period requested – for any individual officer, or for the entire unit as a whole – is likely to: - jeopardize public safety by enabling targeting of officers and compromising secure areas, and - would so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. Items 2, 5, and 7 Regarding Items 2, 5, and 7, in its November 10th response, the Department argues the following: As stated in the initial response, a review of an officer’s key fob swipes could indicate patterns in when officers typically work at various locations, some of which may be confidential and the release of which could jeopardize officer safety. G.L. c. 4, § 7(26)(n) of the Public Records Law allows for the withholding of “records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.” Based on the reasonable judgment of the custodian, disclosure of

Colleen Kehew SPR25/3332 Page 7 November 26, 2025 these records is likely to endanger the safety of task force officers and/or compromise the security of a confidential offsite location. Items 3 and 6 Regarding Items 3 and 6 of the request, in its November 10th response, the Department states that it is withholding records pursuant to Exemption (c), and argues the following: The second clause of Exemption (c) requires a balancing of the public’s right to know against the relevant privacy interests at stake. 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. Additionally, the Department must consider the nature or character of the documents. In this case, some of the requested records may be “useful in making employment decisions regarding an employee,” a specific protection under G. L. c. 4, § 7(26)(c), including records which may pertain to one or more of the following protected categories: “employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee.” Based on the reasonable judgment of the custodian, disclosure of these records is likely to: - risk public embarrassment of specific officers by requesting otherwise- unavailable information about ongoing investigations and intimate details of a personal nature, including records which may pertain to one or more of the following protected categories: “marital status, paternity, substance abuse, government assistance, family disputes and reputation.” - reveal other confidential information specifically protected by G. L. c. 4, § 7(26)(c). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (c), (f), and (n) claims made by the Department to withhold the remaining responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates

Colleen Kehew SPR25/3332 Page 8 November 26, 2025 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Brian Petrini-Smith