Debra S. Kornbluh, Esq. v. Boston, City of - Police Department (SPR 20161046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of Records December 9, 2016 SPR16/1046 Peter M. Geraghty, Esq. City of Boston Police Department Office of the Legal Advisor 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Geraghty: I have received the petition of Debra Kornbluh, on behalf of her client, appealing the response of the City of Boston-Police Department (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Kornbluh requested a copy of a "1969 police report". The Department denied her request pursuant to G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26). Attorney Kornbluh petitioned this office objecting to the blanket denial of all records. Previous appeal The requested record was the subject of a prior appeal based on a non-response by the Department. See SPR16/970 Supervisor ofRecords Determination (November 7, 2016). Subsequent to the Department having provided a written response dated November 1, 2016 that appeal was closed. Status ofthe requester and reason for the request Attorney Kornbluh seeks the record for the purpose of representing her client and indicated that she would accept a copy of the record with the complainant's name redacted. A review of her September 1 0 public records request indicate that she is already aware of the identity of the complainant. Please be advised, under the Public Records Law, the status of the requester as the attorney seeking records to represent a client has no bearing on whether a record may be disclosed. The Public Records Law does not distinguish between requesters. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (the public records statute does not provide a 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

Peter M. Geraghty, Esq. SPR16/1046 Page 2 December 9, 2016 "standing requirement" but extends the right to examine to "any person" whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity." Furthermore, the discovery processes and the Public Records Law are distinct and independent venues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law; that does not mean that a party cannot obtain the same records through discovery processes. Commonwealth v. Wanis, 426 Mass. 639(1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). Therefore, Attorney Kornbluh may wish to seek access to the record through the judicial system. 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 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. Exemption (a) In its November 1 response, Department denied the request pursuant to G. L. c. 41, §97(d) as it operates through Exemption (a) of the Public Records Law. In denying access the Department explained that "the laws of the Commonwealth protect both the identity of a rape victim, as well as the specifics of the report of a sexual assault or rape." 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 Gen. 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

Peter M. Geraghty, Esq. SPR16/1046 Page 3 December 9, 2016 disclosure of records if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't ofEnvtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute cited by the Department provide, in pertinent part: All 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 ... A violation of this section shall be punished by imprisonment for not more than 1 year or by a fine of not more than $1,000, or both such fine and imprisonment. G. L. c. 41, § 97D The cited statute clearly was intended to protect the confidentiality of sexual assault and rape victims. Since the responsive record contains information that the statute intends to protect from disclosure and additionally Attorney Kornbluh' s request clearly indicated that both her and her client knew the identity of the complainant in this matter, therefore, it is not possible to redact the name of the complainant-victim from the record she requested. Accordingly, whereas the record is exempt from disclosure by statute, I find that the Department acted properly in denying access to the responsive record. If Attorney Kornbluh is not satisfied with the resolution of this administrative appeal, this office shares jurisdiction with the Superior Court ofthe Commonwealth. See G. L. c. 66, § 10 b) (pursuing administrative appeal does not limit availability of applicable judicial remedie ). your/ er~ trul cc: Debra Kornbluh, Esq.