Caitlin Russell v. Boston, City of - Police Department (SPR 20171455)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2017 SPR17/1455 Lt. Michael McCarthy Boston Police Department One Schroeder Plaza Boston MA 02120 1 Dear Lt. McCarthy: I have received the petition of Caitlin Russell appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Russell requested "[a]ny documents or logs detailing the response time to domestic violence calls." The Department denied her request, claiming that the responsive record exempt from disclosure under G. L. c. 41, §§ 97D, 98F as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Lt. Michael McCarthy SPR17/1455 Page 2 October 23, 2017 Purpose of request 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 general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Russell's purpose in making the request has no bearing on the public status of any existing responsive records. 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 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). The Department has cited G.L. c. 41, § 97D and G. L. c. 41, § 98F as applicable to withhold the records pursuant to Exemption (a). G.L. c. 41, § 97D provides in relevant 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 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, § 98F provides: Each police department and each college or \university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor

Lt. Michael McCarthy SPR17/1455 Page 3 October 23, 2017 shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault or (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A. Whereas responsive records consist of information related to the type of information specifically exempted by statute, the Department has acted properly in withholding those records which fall within the claimed statutory exemptions from disclosure. However, based on the Department's response it is unclear whether the requested information can be found in any other records in the Department's custody that do not contain information falling within the claimed statutory exemptions. The Department must clarify this matter. Order I understand a staff member of the Public Records Division attempted to contact the Department about this matter, but was unsuccessful. Accordingly, the Department is ordered to provide a response to Ms. Russell in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Ms. Russell may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Caitlin Russell