Narris, Esq., Ann v. Uxbridge, Town of - Police Department (SPR 20150885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 5, 2016 SPRlS/885 Mr. Timothy Burke Sergeant Uxbridge Police Department 275 Douglas Street Uxbridge, MA 01569-1851 Dear Sergeant Burke: I have received the petition of Ann C. Narris, Esq. appealing the response of Town of Uxbridge Police Department (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on May 15, 2015 Attorney Narris requested copies of Department records regarding a specifically named individual. The Department denied her request citing to Exemption (f), the investigatory exemption, stating the responsive records are part of an ongoing investigation. Attorney N arris thereupon appealed the Department's response. Status of requester In her petition Attorney N arris explained that her client has a personal interest in records associated with the request. Please note that the personal status of Attorney N arris' client in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Narris' client's status will provide no basis as to the public status of the responsive records. Exemption (a) Subsequent to the intervention of this office the Department clarified its position in a written response to Attorney Narris. A copy of this response was provided to my office. The Department contends that the responsive records relate to an open investigation, further stating that disclosure could potentially jeopardize the case. The Department also cited several statutes to support nondisclosure, including a statute associated with records related to allegations of sexual assault. G. L. c. 4, § 7 (26) (a), (f); G. L. c. 41 §97D; G. L. c. 265 §24C. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Sergeant Timothy Burke SPR15/885 Page2 January 5, 2016 Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) 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 ofrecords 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) provide in pertinent part: 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 That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13BYz, 13B%, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, ............ , shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. G. L. c. 265, §24C

Sergeant Timothy Burke SPR15/885 Page 3 January 5, 2016 Whereas the responsive record consists of information related to the type of information specifically exempted by statute, I find that the Department acted properly in withholding the requested records from disclosure pursuant to Exemption (a) fthe Public Records Law. rt r/!oms, ha n Williams cc: Ann C. Narris, Esq.