Arthur DiPaolo v. Beverly Police Department (SPR 20170892)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 13, 2017 SPR17/892 Patricia Bouchard Beverly Police Department 191 Cabot Street Beverly, MA 01915 Dear Ms. Bouchard: I have received the petition of Arthur DiPaolo appealing the response of the Beverly 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. DiPaolo requested a police report. In a response dated June 13, 2017 the Department provided a log sheet, but denied access to the report, claiming it exempt from disclosure under G.L. c. 41, § 97D and G.L. c. 265, § 24C as they operate through Exemption (a) of the Public Records Law. G.L. c.4, §7(26)(a). 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). 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. Purpose of request In his petition, Mr. DiPaolo indicates that he has a connection to the requested record. Please note that the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the 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

Patricia Bouchard SPR17/892 Page 2 July 13, 2017 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 requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. DiPaolo's purpose in making the request has no bearing on the public status of any existing responsive records. The Department's response The Department claims the responsive record may be withheld under G.L. c. 41, § 97D and G.L. c. 265, § 24C as they operate through Exemption (a) of the Public Records Law. G.L. c.4, § 7(26)(a). The department explains the requester is not listed as an individual with access. In a response to the requester the department states, "Because you are not a person listed as able to receive this report, under the Massachusetts public Records Law I am not able to provide the request document." 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. Gen. Chern. Corp. v. bep't ofEnvtl. Quality Eng'g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statues provide in pertinent part: All reports of rape and sexual assault or attempts to commit such offences, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209 A, 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 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

Patricia Bouchard SPR17/892 Page 3 July 13, 2017 rape under section thirteen B, 13Bl/3, 13B3/4, 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, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, 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 determined to be a public record under the provisions of section seven of chapter four. G.L. c. 265, §24C Conclusion Whereas the responsive record consists of information related to the type specifically exempted by statute, I find that the Department acted properly in withholding the requested record from disclosure. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur DiPaolo