Jesse Lee Bigham v. Whitman, Town of - Police Department (SPR 20170327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 23, 2017 SPR17/327 Nancy J. Campany, Esq. Murphy, Lamere & Murphy, P.C. 50 Braintree Hill Office Park, Suite 202 Braintree, MA 02184-8807 Dear Attorney Campany: I have received the petition of Jesse Lee Bigham appealing the response of the Town of Whitman 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. Bigham requested all records relating to himself: 1. BOLO from the Town of Halifax Police Department; 2. 911 call and Department response to 91 Glen Street on 8/13/2015; 3. 911 call and Department response to 91 Glen Street on 7/4/2015; and 4. 911 call and Department response to 87 Beolah Street, Apt #2 on 10/31/2013 (Including all CAD sheets, BOLO and/or APB reports, or any other communications between the Department and other law enforcement agencies (Halifax Police Department, B.C.I. and State Police), terra tapes, booking pictures and/or videos, witness and victim statements.) No Records Responsive In your February 24, 2017 response as Legal Counsel to the Town of Braintree and the Department, you informed Mr. Bigham that the Department has no records responsive to his request for 911 call audio recordings, B.O.L.O. and/or A.P.B. reports, records of communications between law enforcement agencies (Halifax PD, BCI and Department of State Police), terra tapes, booking pictures and/or videos in its possession relating to Jesse Lee Bigham and/or relating to the particular calls and police responses that were referenced in Mr. Bigham's public records request. The Department has no records relating to any B.O.L.O. from the Town of Halifax Police Department on 11/12/2013. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26) ( defining "custodian" as the public employee with routine access to or control of public records). A record custodian has no 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

Nancy J. Campany, Esq. SPR17/327 Page 2 March 23, 2017 obligation to create a record, conduct research or analysis in response to a public records request. G. L. c. 66, § lO(a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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 Town has withheld records relating to call reports and incident reports concerning calls to the Department and responses by the Department on October 13, 2013; July 4, 2015 and August 13, 2015 and at the respective addresses due to domestic and sexual assault. These records are restricted by G. L. c. 41, § 97D and G. L. c. 265, § 24C as these statutes operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Exemption (a) allows a records custodian to withhold those 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 of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). G. L. c. 41, § 97D 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

Nancy J. Campany, Esq. SPR17/327 Page 3 March 23, 2017 G. L. c. 265, § 24C provides in pertinent part: [T]hat portion of the records of a court or any police department., .. which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape .... 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. Your February 24th letter explained that the Department is unable to redact the records due to Mr. Bigham's involvement and personal knowledge of the events and personal relationships to the subjects of the records. Accordingly, I find that the Town has properly withheld the records as they are restricted by statute under Exemption (a ) of the Public Records Law. Status of the requester and Appeal to the Supervisor Mr. Bigham informed this office that the records are necessary to his criminal and civil court actions. The Public Records Law does not distinguish between individuals seeking public records. Mr. Bigham's status as the subject of the records offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § 1O (a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. The Public Records Law appeals process shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory,judicial or other applicable means. See 950 C.M.R. 32.08(1)(a) (2017 ed.). Whereas the records are directly related to Mr. Bigham's civil and criminal judicial actions and that he is represented by Legal Counsel, he has a unique right of access through the judicial process. Accordingly, I decline to continue any further review of his petition. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank H. Spillane, Esq., Chief Scott D. Benton, Jesse Lee Bigham