Haven Orecchio-Egresitz v. Falmouth, Town of - Police Department (SPR 20160553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 8, 2016 SPR16/553 Sergeant Douglas M. DeCosta Town of Falmouth-Police Department 7 50 Main Street Falmouth, MA 02540-3297 Dear Sergeant DeCosta: I have received the petition of Haven Orecchio-Egresitz of the Cape Cod Times appealing the response of Town of Falmouth-Police Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Orecchio-Egresitz requested a copy of the "complete investigatory files of two specifically-named individuals who were charged with attempting to commit a crime of enticing a child under the age of sixteen ( 16), and the act of conspiracy." The Department denied the request in its entirety pursuant to statute, including a statute protecting information regarding sexual assaults and attempted sexual assaults. See G. L. c. 4, § 7 26 (a); G. L. c. 41, § 97D. Ms. Orecchio-Egresitz appealed. 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, § 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). To assist in requesting and responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Sgt. Douglas DeCosta SPR16/553 Page 2 August 8, 2016 conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number below for further information. Exemption (a) In the Department's July 15, 2016 response, Ms. Orecchio-Egresitz's response was denied pursuant to statute. 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) 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 ofEnvironmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that the Department has claimed to withhold certain of the records in their entirety pursuant to Exemption (a) is G. L. c. 41, § 97D. This statute provides in pertinent part: [A]ll reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors .... G. L. c. 41, § 97D The purpose of this statute is to protect the rights of victims of sexual assault. In such instances a records custodian does not have discretion to disclose such records, as the statute applies to "all reports," further stating that such reports "shall not be public reports."

Sgt. Douglas DeCosta SPR16/553 Page 3 August 8, 2016 Conclusion Whereas the records contain information regarding allegations of sexual assault, and further whereas such records are specifically exempted from disclosure under the Public Records Law, I find the Department acted properly in denying the request for records. l~flur., V r. y t /; ' illiams Supervisor of Records cc: Ms. Haven Orecchio-Egresitz