Bustard, Terrance v. Burlington, Town of - Police Department (SPR 20260479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 25, 2026 SPR26/0479 Kate Curtis-Bozio Records Administrative Assistant Burlington Police Department 45 Center Street Burlington, MA 01803 Dear Ms. Curtis-Bozio: I have received the petition of Terrence J. Bustard appealing the response of the Burlington 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 February 3, 2026, Mr. Bustard requested the following: …any records involving [an identified individual], a Domestic Violence Detective (or any Burlington PD officer serving in that role), that mention or involve [two identified individuals] either directly or indirectly. This request covers records created, received, or kept from January 14, 2026 to the present, including but not limited to: • Any police reports, incident reports, supplemental reports, or internal summaries that reference [two identified individuals][;] • Any emails, text messages, letters, or other written or electronic communications between [two identified individuals][;] • Any emails or internal communications between [an identified individual] and other officers, supervisors, or departments that reference [two identified individuals][;] • Any notes, memoranda, case files, investigative records, call logs, CAD entries, or database records that reference [two identified individuals][;] • Any additional records related to the incident reported on or about January 22, 2026, including records connected to Case Reference #26-002285, if applicable (the main incident report has already been provided)[.] On February 4, 2026, Mr. Bustard expanded the scope of his request to cover the period of December 7, 2025 to the present. 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

Kate Curtis-Bozio SPR26/0479 Page 2 February 25, 2025 The Department responded on February 4, 2026. Unsatisfied with the Department’s response, Mr. Bustard petitioned this office and this appeal, SPR26/0479, 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 February 4th Response In its February 4, 2026 response, the Department stated, “[w]ith respect to your request, please be advised that this Department does not have possession, custody or control of the records requested within the time frame of ‘...January 14, 2026 to the present.’” In addition, the Department stated, “[w]ith respect to your request regarding ‘December 7, 2025 to the present’ the Department has identified the following responsive record[s] in its possession, custody, and control: ‘Case 25-034201, Log 25-03421, Log 25-035764, Log 25- 033859.’” The Department further stated that it was withholding Case 25-034201 and Log 25-03421 entirely from disclosure pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Regarding Log 25-035764 and Log 25-033859, the Department provided the records redacted pursuant to Exemption (c), and noted that any notes taken by law enforcement would be withheld under Exemption (e).

Kate Curtis-Bozio SPR26/0479 Page 3 February 25, 2025 Current Appeal In his appeal petition, Mr. Bustard argued against the applicability of the exemptions and cited procedural fairness concerns related to ongoing family court proceedings. 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). 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 response, the Department cited G. L. c. 41, § 97D to withhold two responsive records. 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...

Kate Curtis-Bozio SPR26/0479 Page 4 February 25, 2025 G. L. c. 41, § 97D. Under Exemption (a), the Department stated: The records requested contain information on acts of abuse between family and household members. This information consists of information which is protected under G.L. c. 41, section 97D since this information is falls under the guidelines specified in section 1 of 209A as the record consists of information that details acts of abuse and communications between law enforcement personnel and the victim of the prior abuse. As a result, such information must be withheld under the law. Based on the information provided in the Department’s response, where the withheld responsive records constitute reports that are restricted from disclosure in their entirety by the legislature under G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law, I find that the Department has met its burden withhold these reports from disclosure under Exemption (a). 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 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 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.

Kate Curtis-Bozio SPR26/0479 Page 5 February 25, 2025 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. Regarding the Department’s redactions under Exemption (c), the Department stated: The records requested contain information that, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details, and the privacy interests involved outweigh the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (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… The record requested contains information of an extremely personal nature (to include dates of birth, social security numbers, license numbers, and private cellphone numbers). This information is also not available from other sources. Releasing dates of birth in combination with a person’s name would allow for the vulnerability of identity theft and cyber crimes. The record requested also contains medical information on an adult individual. Also, the record requested contains information on a juvenile individual… If released, the record would constitute an unwarranted invasion of personal privacy on a juvenile. As a result, such information must be redacted under the law. To the extent that the responsive records contain medical information of a specifically identified individual, I find that the Department may properly withhold such portions under Exemption (c).

Kate Curtis-Bozio SPR26/0479 Page 6 February 25, 2025 Further, while some of the redacted information may be properly withheld under the privacy clause of Exemption (c), such as social security numbers and private cell phone numbers that are not available from other sources, it remains unclear how all of the Department’s additional redactions fall under Exemption (c). In this case, the Department has not established how this information constitutes intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Further, it is uncertain whether any of this information is available from other sources. PETA, 477 Mass. at ---- 292. The Department must also provide additional 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. The Department must clarify these matters. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Under Exemption (e), the Department stated: …as your request states, ‘any notes...’ if taken by any of the Law Enforcement personnel are withheld under Exemption (e)… If the records requested existed, they would contain information utilized solely by the Officer responding to assist in preparation of their reports, log entries, or investigations. Such notes are not shared with other individuals within the department and are strictly utilized for the

Kate Curtis-Bozio SPR26/0479 Page 7 February 25, 2025 individual officer's own use and are not kept as part of a case file or attached to the record. As a result, if said documents do exist, they are to be withheld under the law (SPR22/2160, October 26, 2022). However, you may contact any Officer directly if you wish to ask for additional information on a record. A list of contacts is available on our department website. Based on the Department’s response, where it states that responsive notes taken by law enforcement would be withheld under Exemption (e) “if the records existed,” it is unclear whether the Department possesses the notes referenced in Mr. Bustard’s request. The Department must clarify this matter. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Consequently, to the extent any responsive notes exist, the Department must explain with specificity how Exemption (e) applies to the withheld record(s). 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, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is ordered to provide Mr. Bustard 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. Mr. Bustard 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: Terrence J. Bustard