Sharkey, Kyle v. Boston, City of - Police Department (SPR 20260599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0599 Christine O’Donnell, Esq. Records Access Officer Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Kyle Sharkey appealing the response of the Boston 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 7, 2026, Mr. Sharkey requested: . . . all information below regarding communications with [an identified] Chartered Professional Accountant in Massachusetts (CPA often included in closing of emails)[.] Search Term/Subject – [an identified individual] If [an identified individual] is “not” included in below noted correspondence I would request all in your custody and control and differentiate from [an identified individual]. Types of Covered Communications may include[:] Emails: Both personal and work email accounts, if used for government business. Text Messages and Instant Messages: SMS, WhatsApp, Signal, or other messaging services on personal or government devices. Voicemails: Recorded messages. Letters and Correspondence: Memos, notes, and written communication. Social Media: Messages, comments, or posts on social media platforms if they relate to public business. Audio/Video Recordings: Recordings of meetings or public interaction[.] . . . Date Range April 2023 – Present (present meaning the day of response within the 10 business days) 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

Christine O’Donnell, Esq. SPR26/0599 Page 2 March 3, 2026 [1] [A]ll police reports[;] [2] [A]ll recordings of phone calls to/from the department[;] [3] [A]ll email correspondence including [a]ttachments – to or from – [an identified individual and specified email address]. If she used her company email upon information and belief it should be [specified email addresses][;] [4] [L]etters, written statements, exhibits, [and] documents provided to the Police Department[;] [5] Recordings of Interviews made at the Department[.] The Department responded on February 20, 2026, and assigned reference number B000433-020726 to this request. Unsatisfied with the Department’s response, Mr. Sharkey petitioned this office and this appeal, SPR26/0599, 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 20th Response In its February 20, 2026 response, the Department cited Exemption (c) of the Public Records Law to withhold “any and all public records regarding this individual.” See G. L. c. 4, § 7(26)(c). Current Appeal In his appeal petition, Mr. Sharkey contends, “[t]he Boston Police Department did not identify each specific record. . . . Simply claiming that ‘redacting names... would not ensure

Christine O’Donnell, Esq. SPR26/0599 Page 3 March 3, 2026 privacy’ is often considered an overbroad justification. That they should redact names, addresses, specific identifiers, and personal details, and produce the remaining substance of the reports. Not all information related to a person is protected. . . .” 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). 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. Under Exemption (c), the Department asserts, “. . . any material and information regarding specific witnesses/victims would have to be removed to protect their privacy. In this

Christine O’Donnell, Esq. SPR26/0599 Page 4 March 3, 2026 case, however, redacting the names and/or identifying information within the reports would not ensure the privacy of the parties involved.” Based on the Department’s response, it is unclear how the requested records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not 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. Id. The Department must clarify these matters. Additionally, it is unclear how the records can be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Further, based on the Department’s response, it is unclear what records it possesses that it withheld from disclosure. 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 . . .”). Therefore, the Department must identify the records it has in its possession that it is withholding under Exemption (c). Conclusion Accordingly, the Department is ordered to provide Mr. Sharkey 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. Sharkey 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: Kyle Sharkey