Tom Donahoe v. Berkshire Regional Emergency Communications Center (SPR 20253773)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2026 SPR25/3773 Don Tryon Director of PSAP Operations (West) Berkshire Regional Emergency Communications Center 467 Cheshire Road Pittsfield, MA 01201 Dear Mr. Tryon: I have received the petition of Tom Donahoe appealing the response of the Berkshire Regional Emergency Communications Center (BRECC) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On December 5, 2025, Mr. Donahoe requested “audio files for the following converstations” dated July 18, 2025: [1] [An identified individual’s] call to 911 at approx 17:30 [a]lleging trespass on her property . . .[;] [2] [An identified individual’s] call to 911 at approx 17:31 [a]lleging trespass on his property[;] [3] [An identified individual’s] second call to 911 approx 17:32 ([c]ancelling the first 911 call, i.e. #1 above)[;] [4] [An identified individual’s] call to Lee police (or dispatch #, i.e., a 413-243- xxxx number) as of 18:20 (to report the trespass that occurred on my property ealier in the afternoon)[;] [5] [An identified police officer] calling [an identified individual] back and calls ends at approx 18:47[;] [6] Any other call to 911 on July 18, 2025, between 16:20 and 24:00 by [two identified individuals] re: [t]respass using addresses of . . . or . . . or . . . The BRECC provided responses on December 6, and December 16, 2025. Unsatisfied with the BRECC responses, Mr. Donahoe petitioned this office and this appeal, SPR25/3773, was opened as a result. 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

Don Tryon SPR25/3773 Page 2 January 7, 2026 Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Donahoe’s status shall have no bearing on the public status of any existing responsive records. 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. See 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. See 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 BRECC’s December 5th and December 18th Responses In its December 5, 2025 response, the BRECC stated, “[p]lease forward your request to BRECCRecords@mass.gov. Once received at that address, the request will be reviewed by the State 911 Department’s General Counsel prior to any approved files being released…” In its December 18, 2025 response, the BRECC stated it had “identified the 911 records responsive to your request” and cited Exemptions (c) and (f) of the Public Records Law to withhold the records in their entirety. See G. L. c. 4, § 7(26)(c), (f). Current Appeal In his December 22, 2025 appeal, Mr. Donahoe objected to the BRECC withholding the 911 records under Exemptions (c) and (f) of the Public Records Law.

Don Tryon SPR25/3773 Page 3 January 7, 2026 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or date 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 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). 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 interest 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. 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). When analyzing a privacy claim, there is 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

Don Tryon SPR25/3773 Page 4 January 7, 2026 carrying out their duties in a law abiding and efficient manner. Id. at 292. In BRECC’s December 18th response, under Exemption (c), it argued, “the State 911 Department consider this 911 recording to be exempt from disclosure pursuant to [Exemption (c)] (privacy exemption) because they contain personal and medical information.” 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). 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;  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

Don Tryon SPR25/3773 Page 5 January 7, 2026 known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In BRECC’s December 18th response, under Exemption (f), it argued, “[a] 911 caller is a voluntary witness. [Exemption (f)], therefore, allows the permanent withholding of the name(s) and identifying details of witnesses. A person’s voice and the corresponding audio recording of a 911 call is identifying. The investigative exemption allows withholding from public disclosure any information contained in a statement which, if disclosed, would create a grave risk of directly or indirectly identifying voluntary witness(es).” Where the identity of the voluntary witnesses are known to the requestor, I find that the BRECC may permissibly withhold the 911 calls in their entirety under Exemption (f). As such, I decline to opine on the claim of Exemption (c) of the Public Records Law to withhold responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Donahoe is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisidiciton with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Tom Donahoe