Chritson, David v. Somerville, City of (SPR 20261139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2026 SPR26/1139 Susan Tkaczuk City Hall, Law Department City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Ms. Tkaczuk: I have received the petition of David Chritson appealing the response of the City of Somerville (City) 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. Chritson requested: [D]istinct records of the Somerville Police Department (“SPD”) -- including records in physical format (including papers, meeting notes, memos, etc.) and electronic format -- beginning on March 1, 2023 and continuing in a forward chronological order without skipping any records until the 2 hours of search and/or redaction are exhausted, after which you must stop the search or process to avoid fees. I am requesting only SPD internal records made or received by SPD’s [identified individual] and associated with . . . Responsive records must include [an identified individual’s] cell phone records, SMS, text messages, and app messages. Please search for physical and electronic records containing keywords or subject lines such as: [a list of four names.] Previous Appeal This request was the subject of a previous appeal. See SPR26/0604 Determination of the Supervisor of Records (March 9, 2026) and SPR26/1030 Determination of the Supervisor of Records (April 6, 2026). In my April 6th determination, I encouraged Mr. Chritson and the City to communicate directly in order to facilitate providing records more efficiently and affordably. While the previous appeal was pending, the City responded on March 24, and March 25, 2026. Unsatisfied with the City’s responses, Mr. Chritson petitioned this office, and this appeal, SPR26/1139, 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

Susan Tkaczuk SPR26/1139 Page 2 April 10, 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. Current Appeal In his appeal petition, Mr. Chritson seeks the following: 1. Order the City to provide a legally sufficient, detailed description of each redaction or withholding, including the substance of each record and the basis for any attorney-client privilege claim; 2. Order an in-camera review of the responsive records redacted under Exemptions (a), (c), and (f); and 3. Order the City to re-send the previously produced responsive records that it continues to withhold from me. As noted in the previous determination, Mr. Chritson is advised that according to 950 C.M.R. 32.07(1)(a), “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” In this case, where the City has previously provided Mr. Chritson with the requested records, and the regulations require that one copy of a public record be provided, I find that the third part of Mr. Chritson’s appeal is resolved. The City’s March 24th Response In its March 24, 2026 response, the City provides numerous records in redacted form and cites Exemptions (c) and (f) of the Public Records Law, and the attorney-client privilege for redacting the records. See G. L. c. 4, § 7(26)(c), (f).

Susan Tkaczuk SPR26/1139 Page 3 April 10, 2026 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. In its March 24th response, the City argues the following under Exemption (c): Personal identifying information has been redacted pursuant to exemption (c), the privacy exemption. The disclosure of such information may constitute an unwarranted invasion of personal privacy and the public interest in disclosure of the information does not outweigh the privacy interest associated with disclosure of the information. G.L. c. 4, § 7, cl.26(a).

Susan Tkaczuk SPR26/1139 Page 4 April 10, 2026 Based on the City’s response, it is unclear how the redacted portions of the records are intimate details of a highly personal nature nor 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 City did not 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 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 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. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). 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. 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

Susan Tkaczuk SPR26/1139 Page 5 April 10, 2026 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 known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. In its March 24th response, under Exemption (f), the City argues the following: Exemption (f) permits redaction of the names and identifying details of voluntary complainants and witnesses. Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976). Further, exemption (f) allows redactions 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, cl.26(f). Based on the City’s March 24th response, I find that to the extent the City redacted identifying information of voluntary witnesses and complainants, the City may permissibly redact such portions from the responsive records under Exemption (f). However, it is unclear how the remaining redactions constitute investigatory materials. Further the City did not demonstrate how disclosure of the redacted information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest,” as required to withhold records under Exemption (f). The City must clarify this. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party

Susan Tkaczuk SPR26/1139 Page 6 April 10, 2026 seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Under the attorney-client privilege, the City states the following: Privileged attorney-client communications were redacted pursuant to exemption (a), the statutory exemption of the Mass. Public Records Law. Such information is protected from disclosure under M.G.L. c. 4, §7(26)(a), exempting information which is implicitly or explicitly exempt under another statute or under caselaw, such as attorney-client communications. Based on the City’s March 24th response, the City has not met its burden to redact the responsive records pursuant to the attorney-client privilege. Specifically, the City must provide an index comprised of a detailed description of each record withheld or redacted pursuant to the attorney-client privilege, including the names of the author and recipients, the date, the substance of each record, and the grounds upon which the privilege is being claimed. See G. L. c. 66, § 10A(a). Further, the City must clarify whether the communications were made during the course of the client’s search for legal advice from the attorney in his or her capacity as such, whether the communications were made in confidence, and that the privilege as to the communications has not been waived. See Suffolk, 449 Mass. at 450 n.9. Conclusion Accordingly, the City is ordered to provide Mr. Chritson 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. Chritson may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Susan Tkaczuk SPR26/1139 Page 7 April 10, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Davis Chritson