Jesko, Jackie v. Newton, City of - Police Department (SPR 20261093)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2026 SPR26/1093 Jaclyn R. Zawada, Esq. Assistant City Solicitor City of Newton Law Department 1000 Commonwealth Avenue Newton Centre, MA 02459 Dear Attorney Zawada: I have received the petition of Jackie Jesko appealing the response of the City of Newton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 11, 2026, Ms. Jesko requested, “[a]ll incident reports involving an individual named …” The City responded on March 25, 2026. Unsatisfied with the City’s response, Ms. Jesko petitioned this office and this appeal, SPR26/1093, was opened as a result. Subsequently, the City provided a supplemental response on April 2, 2026 which Ms. Jesko appealed on the same date. 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 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

Jaclyn R. Zawada, Esq. SPR26/1093 Page 2 April 8, 2026 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. Current Appeal In her March 25, 2026 appeal Ms. Jesko states, “Massachusetts law requires that exemptions be narrowly construed and that any reasonably segregable, non-exempt portions of a record be released. The City’s response does not demonstrate that it conducted such a segregation analysis, nor does it explain why redaction would not sufficiently protect any sensitive medical or personal details.” In her April 2, 2026 appeal, Ms. Jesko contends, First, although medical and personally identifying information may properly be redacted under Exemption (c), the Department has redacted nearly the entirety of the narrative portion of the report. The narrative of a police incident report-- such as the basic facts of what occurred, the nature of the call, and the officers’ actions—does not become categorically exempt simply because it may reference a medical situation. The law requires segregation and disclosure of non-exempt factual content, which has not occurred here. Second, the report appears to be classified as a “general incident,” and does not involve charges, property, or vehicles. This further underscores that there are factual, non-exempt portions of the report that can be disclosed without implicating sensitive personal information. Third, while the Department asserts Exemption (f) to withhold witness identity, that exemption does not justify withholding the substance of statements or the general circumstances of the incident. Protecting anonymity does not require wholesale removal of narrative content. The City’s March 25th and April 2nd Responses In its March 25, 2025 response, the City stated that it identified one report number 21027501. The City cited Exemption (c) of the Public Records Law to withhold the report in its entirety. In its April 2, 2026 response, the City provided the report with redactions pursuant to Exemptions (c) and (f) of the Public Records Law. Exemption (c) Exemption (c) applies to: 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

Jaclyn R. Zawada, Esq. SPR26/1093 Page 3 April 8, 2026 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 Information 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., 388 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. 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 carrying out their duties in a law abiding and efficient manner. Id. at 292. In its April 2, 2026 response, the City stated, … this report has been redacted to remove medical information per G.L. c.4 §7(26)(c)(medical exemption), personal identifying information including home

Jaclyn R. Zawada, Esq. SPR26/1093 Page 4 April 8, 2026 address, cell phone number, and date of birth per G.L. c.4 §7(26)(c) (privacy exemption), and witness information per G.L. c.4 §7(26)(f) (investigative exemption). As you know, medical information is specifically exempt from disclosure per G.L. c.4 §7(26)(c)(medical exemption). Where this report contains medical information relating to a specifically named individual, that information is not subject to public disclosure and has been properly redacted. Id Likewise, information that relates to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy, is exempt per G.L.c.4 §7(26)(c)(privacy exemption). In this case, the report contains a specifically named individual’s address, cell phone number, and date of birth, which together are not available from other sources and which, if disclosed, would constitute an unwarranted invasion of the individual’s privacy. Because the individual’s privacy interest in this information outweighs the public interest in disclosure, it has been withheld. To the extent that the records contain medical information that relates to a specifically named individual, I find the City may permissibly withhold such portions from disclosure under Exemption (c). In addition, I find that the City may withhold the cell phone number under Exemption(c). However, based on the City’s response, it is not clear how an individual’s date of birth and address constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also unclear if such information is available from other sources. The City must clarify these matters. 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). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of

Jaclyn R. Zawada, Esq. SPR26/1093 Page 5 April 8, 2026 effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective Law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas, 371 Mass. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. 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. In its April 2, 2026 response, the City stated, “… the identity of a witness has been withheld per G.L. c.4 §7(26)(f)(investigative exemption). As noted in A Guide to the Massachusetts Public Records Law, this redaction is appropriate to preserve the anonymity of a voluntary witness. Inversely, disclosure of this witness information would discourage witnesses from contacting law enforcement, which is not in the public interest.” Based on the City’s response, where the City states that it withheld identifying information of a voluntary witness, I find that the City may properly claim Exemption (f) to withhold such information. The inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his/her career, such as people in the workforce community. See Globe Newspaper Co., 388 Mass. at 438; see also Antell, 52 Mass. App. Ct. at 248 (redactions may be appropriate under Exemption (f) where they serve to preserve the anonymity of voluntary witnesses). Conclusion Accordingly, the City is ordered to provide Ms. Jesko 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.

Jaclyn R. Zawada, Esq. SPR26/1093 Page 6 April 8, 2026 Jesko may appeal the substantive nature of the City[‘s response within ninety (90) days. See 950 C.M.R. 2.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jackie Jesko