Michael O'Farrell v. Fitchburg, City of - Police Department (SPR 20253376)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2025 SPR25/3376 Captain Matthew LeMay Technical Services Commander Fitchburg Police Department 20 Elm Street Fitchburg, MA 01420 Dear Captain LeMay: I have received the petition of Michael D. O’Farrell appealing the response of the Fitchburg 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 August 18, 2025, Mr. O’Farrell requested “all information created by, or received by, or accessed by the City of Fitchburg MA Police Department relying on the Massachusetts Public Records Law, G.L. c. 66, §10 for all records of arrest and arrest related documents to include the specific charge(s) of [a specific] named individual.” The Department responded on August 29, 2025. Unsatisfied with the Department’s response, Mr. O’Farrell petitioned this office, and this appeal, SPR25/3376, 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

Captain Matthew LeMay SPR25/3376 Page 2 December 2, 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. Current Appeal In his appeal petition, Mr. O’Farrell argues the following: [The RAO] erroneously relies on “Exemption A (The Statutory Exemption) of Massachusetts General Law Chapter 4, Section” to deny request. . . . The request sought ARREST information, not investigatory information. The request is/was not concerned with the identity of victims, witnesses, addresses, or involved police officers. . . . No person in Massachusetts is afforded anonymity or identity protection when charged with a criminal act. Trials and sentencing are conducted publicly, and all associated pre-hearing or pre-trial records are public information. . . . [The RAO] failed to exercise his privilege (as Document Custodian) to redact what he considered “sensitive information,” a privilege which cannot be exercised now. Nevertheless, [the RAO] could have exercised the redaction privilege and released the obvious public records with names and addresses of victims and witnesses redacted. . . . For the above reasons [the RAO]’s DENIAL is appealed and should be overturned by the Supervisor of Public Records. Requester has no interest whatsoever in obtaining the identity of the victim(s) of . . . domestic abuse or any witnesses to . . . domestic abuse crimes, which is precisely what redaction is in this instance. Upon review of the appeal petition, I understand that Mr. O’Farrell objects only to the withholding of records in their entirety, and not to the redactions made to the record he was provided. The Department’s August 29th Response In its August 29, 2025 response, the Department provides a record in redacted form, and cites Exemption (c) of the Public Records Law for redacting the record. The Department also cites Exemptions (a) and (c) for withholding others. See G. L. c. 4, § 7(26)(a), (c).

Captain Matthew LeMay SPR25/3376 Page 3 December 2, 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. G. L. c. 41, § 97D 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

Captain Matthew LeMay SPR25/3376 Page 4 December 2, 2025 G. L. c. 41, § 97D. In its August 26th response, the Department provides a list of approximately thirty-two incident reports and explains the following: 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; Statutorily all domestic violence reports and associated documents are prohibited from being released to the public as a public records request. Based on the Department’s August 29th response, where the incident reports listed in the Department’s response 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 to withhold the list of reports 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”). 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 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). 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

Captain Matthew LeMay SPR25/3376 Page 5 December 2, 2025 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 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 29th response, the Department also identifies a responsive video, and explains the following:

Captain Matthew LeMay SPR25/3376 Page 6 December 2, 2025 These records have been redacted in accordance with Exemption C (Personal Privacy) under M.G.L. c. 4, § 7(26)(c): This exemption protects materials that relate to a specifically named individual, the disclosure of which would constitute an unwarranted invasion of personal privacy. The video in question contains a private and sensitive conversation between an individual and a police officer, in which the individual seeks guidance regarding a possible Harassment Prevention Order. Disclosure of such footage would compromise the privacy of the individual and discourage future victim cooperation with law enforcement. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the Department to withhold video identified in the Department’s response, the Department must provide this office with an un-redacted copy of the responsive video 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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive video for in camera inspection without delay.

Captain Matthew LeMay SPR25/3376 Page 7 December 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael D. O’Farrell