Legere, Christine v. Dennis, Town of - Police Department (SPR 20150496)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 22, 2015 SPRlS/496 Peter M. Dimatteo Chief of Police Dennis Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear ChiefDiMatteo: I have received the petition of Christine Legere of the Cape Cod Times appealing the response of Dennis Police Department (Department) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Legere requested access to review or a copy of an investigation report concerning a specifically named individual in the Dennis Yarmouth Regional School District, and a waiver of all applicable fees to obtain the report. The Department denied Ms. Legere's request, claiming that the responsive record is exempt under G. L. c. 41, § 97D as it operates through Exemption (a). Ms. Legere appealed this denial. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (a) The Department stated in its June 1, 2015 written response that the record is exempt by statute, as it involves a sexual assault investigation pursuant to G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law. Therefore, Exemption (a) merits consideration. It allows withholding of those records that are: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Chief Peter M. Dimatteo SPR15/496 Page Two September 22, 2015 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 Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the Department to withhold certain records pursuant to Exemption (a) is G. L. c. 41, §97D, the sexual assault statute. G. L. c. 41, § 97D provides: All reports of rape and sexual assault or attempts to commit such offenses and all conversations between police officers and victims of said offenses shall not be public reports and shall be maintained by the police departments in a manner which will assure their confidentiality. G. L. c. 41, § 97D In her petition Ms. Legere noted that "no charges were filed." This fact has no bearing on whether this statute is applicable, as it relates to all "reports" or "attempts" to commit "rape and sexual assaults." As such, I find the Department properly denied Ms. Legere's request under Exemption (a) of the Public Records Law. Supervisor of Records cc: Ms. Christine Legere