Bustard, Terrance v. Burlington, Town of - Police Department (SPR 20261088)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 3, 2026 SPR26/1088 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 SPR26/1088 Page 2 April 3, 2026 Previous Appeal This request was the subject of a previous appeal. See SPR26/0479 Determination of the Supervisor of Records (February 25, 2026). In my February 25th determination, I found that the Department met its burden to withhold two identified records from disclosure pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Additionally, I ordered the Department to clarify its claims to redact two other responsive records under Exemption (c) and to clarify whether it was withholding any additional records under Exemption (e). The Department responded on February 25, 2026. Unsatisfied with the Department’s response, Mr. Bustard petitioned this office and this appeal, SPR26/1088, was opened as a result. While this appeal was pending, the Department provided a supplemental response on March 25, 2026. 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 25th Response In its February 25, 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… aside from what was previously provided to you…” In addition, the Department provided further explanation of its Exemption (c) claims to redact the two previously identified responsive records.

Kate Curtis-Bozio SPR26/1088 Page 3 April 3, 2026 Current Appeal In his appeal petition, Mr. Bustard argued that the Department’s response is deficient for the following reasons: [1] Failure to clarify whether responsive notes exist (Exemption (e))… [2] Failure to provide specific justification under Exemption (c)… [3] Failure to address segregability… [4] Failure to provide record-specific explanations… [5] No evidence of a renewed or expanded search… In its March 25, 2026 supplemental response, the Department provided additional clarification regarding its redactions under Exemption (c) and stated: Please note that we did indicate in our response that no notes existed. Per the SPR determination, for clarification on the existence of notes… We did not cite [Exemption (c)] as a reason for withholding any records. It was also determined that we met our burden to withhold records listed under Exemption A. This department is not able to provide records that do not exist… No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Further, 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). Given that the Department has confirmed that it is not withholding any records under Exemption (e) and possesses no additional records responsive to the request other than those previously identified, and this office has no authority to compel the Department to create records, I will consider this portion of Mr. Bustard’s appeal resolved. 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).

Kate Curtis-Bozio SPR26/1088 Page 4 April 3, 2026 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. 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 February 25, 2026 response, 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

Kate Curtis-Bozio SPR26/1088 Page 5 April 3, 2026 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. In its March 25, 2026 response, the Department further clarified, “medical information, social security numbers, license numbers, juvenile identifying information, dates of birth, and personal cellphone numbers were redacted…” 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). Further, while most of the redacted information may be properly withheld under the privacy clause of Exemption (c), it remains unclear how the Department may redact dates of birth under Exemption (c). 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 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 this matter. 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).

Kate Curtis-Bozio SPR26/1088 Page 6 April 3, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Terrence J. Bustard