Grace Ferguson v. Fall River, City of - Police Department (SPR 20253497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 10, 2025 SPR25/3497 Ashley Ferreira Records Clerk Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Ms. Ferreira: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the Fall River 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 10, 2025, Ms. Ferguson requested “all police incident reports for …Highland Avenue in Fall River since November 10, 2023.” The Department responded on November 12, 2025, November 13, 2025, November 19 2025, and November 20, 2025, assigning the request reference number P008864-111025. Unsatisfied with the Department’s responses, Ms. Ferguson petitioned this office and this appeal, SPR25/3497, 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. 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

Ashley Ferreira SPR25/3497 Page 2 December 10, 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. The Department’s Responses On November 12, 2025, the Department sought clarification of how Ms. Ferguson relates to the requested reports. After further correspondence with Ms. Ferguson, on November 13, 2025, a Department official stated, “I am waiting for permission to release what information I can to you.” In its November 19, 2025 response, the Department provided a call log redacted pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law. In addition, the Department stated, “…due to the nature of [the reports], you are unable to receive them without being an involved participant.” After further correspondence with Ms. Ferguson, in its November 20, 2025 response, the Department provided “a PDF packet with reports pertaining to this request,” redacted pursuant to Exemption (a) of the Public Records Law. The Department additionally stated that it was withholding “reports that are not able to be released which are covered under exemption A.” Current Appeal In her appeal petition, Ms. Ferguson stated: The department has provided heavily redacted records and withheld an unspecified number of additional records, citing only exemption (a) of the public records law without stating which specific statute applies to the records… I am also contesting the call log redactions, as the department has not specifically explained the applicability of the privacy exemption cited. 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, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977).

Ashley Ferreira SPR25/3497 Page 3 December 10, 2025 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. In its November 19, 2025 production of call log records, the Department provided a redaction log that cited G. L. c. 41, § 97D for one of the redactions. G. L. c. 41, § 97D provides in pertinent 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... G. L. c. 41, § 97D. The Department’s November 20, 2025 production of responsive reports also contained a redaction log, which recited the language of Exemption (a) for each redaction. 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).

Ashley Ferreira SPR25/3497 Page 4 December 10, 2025 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 19, 2025 production of call log records, in addition to the redaction under G. L. c. 41, § 97D, the Department’s redaction log recited the language of Exemption (c) for each of the additional redactions, labeling each redaction, “Privacy.” Upon review, the Department’s November 19, 2025 redaction log merely cites G. L. c. 41, § 97D without any explanation of the statute’s applicability to the responsive records. The Department must clarify this matter. Further, for the remainder of redactions under Exemption (a) in the Department’s November 20, 2025 redaction log, and regarding the additional records withheld entirely under Exemption (a), the Department did not cite any statutes in support of such redactions and withholding. The Department is reminded that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Accordingly, the Department must clarify which statute(s) permit it to redact and withhold the responsive records. Based on the Department’s November 19, 2025 redaction log, it is additionally unclear how the Department may redact the responsive records pursuant to Exemption (c) of the Public Records Law. In this case, the Department has not established how the redactions contain intimate details of a highly personal nature, nor how disclosure would result in personal

Ashley Ferreira SPR25/3497 Page 5 December 10, 2025 embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. The Department must also provide 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. As a result, the Department has not met its burden to redact the responsive records under Exemption (c) of the Public Records Law. Consequently, the Department must explain with specificity how Exemptions (a) and (c) apply to the redacted and withheld 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”). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson 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. Ms. Ferguson may 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: Grace Ferguson