Mark Kominsky v. Carver, Town of - Police Department (SPR 20170123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 8, 2017 SPR17/123 Chief Marc Duphily Carver Police Department l 12B Main Street Carver, MA 02330 Dear Chief Duphily: I have received the petition of Mark Kominsky appealing the response of the Carver Police Department (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Kominsky requested "any and all paper work, incident reports, phone records" related to seven (7) specified investigations. Previous appeal This request was the subject of previous appeals. See SPR16/998 Determination of the Supervisor of Records (November 10, 2016); SPR16/1152 Determination of the Supervisor of Records (December 19, 2016). This office closed SPR16/1152 with the proviso that the Department provide Mr. Kominsky with a supplemental response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department responded in a letter dated January 4, 2017 and Mr. Kominsky informed this office he objects to this response. This appeal (SPRl 7/123) was opened as a result. Exemption (I) In its January 4th letter the Department explains that "all records responsive to your November 8, 2016 request that are subject to mandatory disclosure under G. L. c. 66, § 1 O" have been provided. It is also noted that the Department possesses other responsive records, but they are being withheld "as they fall within one or more of the statutory exemptions set forth in G. L. c. 4, §7, clause twenty-sixth," referencing a previous response from the Department dated November 21, 2016. In this November 21st letter the Department explains that responsive records have been redacted under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Chief Marc Duphily SPRl 7/123 Page2 February 8, 2017 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). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner 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 id. at 289-90. In the Department's November 21st response you explain that the redacted portions of the records include information related to voluntary witness statements as well as "the name, address and identifying details of a victim, voluntary complainant or witness." The disclosure of identifying details of voluntary witnesses may deter other potential witnesses and citizens from providing information to police in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of witnesses and complainants. In addition, any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness may be withheld from disclosure. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983) (identifying information is considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual). Therefore, I find the Department acted properly in redacting the requested records. Exemption (a ) The Department is also withholding certain responsive records under G. L. C. 41, §97 D as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Chief Marc Duphily SPR17/123 Page 3 February 8, 2017 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. 529, 545-46 (1977). This office cannot order disclosure ofrecords if a statute mandates nondisclosure. Gen. Chem. Corp. v. Dep't ofEnvtl Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). This exemption created two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The applicable statute provides 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 G. L. c. 41, §97D Whereas these responsive records consist 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. Conclusion Accordingly, whereas the Department may properly withhold the requested records pursuant to Exemption (f) and G. L. C. 41, §97 Das it operates through Exemption (a), this administrative appeal is closed. If Mr. Korninsky is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See

Chief Marc Duphily SPRl 7/123 Page 4 February 8, 2017 G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Kaminsky