Sean M. Thomas v. Boston, City of - Public Records (SPR 20171599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2017 SPR17/1599 Shawn Williams, Esq. Director -Records Access Officer Boston Public Records Department 1 City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petition of Sean M. Thomas appealing the response of the City of Boston (City) to a request for public records. Specifically, Mr. Thomas requested certain investigatory reports. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). This request was the subject of previous appeals. See SPRl 7/ 884 Determination of the Supervisor of Records (July 11, 2017); SPRl 7/1152 Determination of the Supervisor of Records (September 7, 2017); SPRl 7/1501 Determination of the Supervisor of Records (October 27, 2017). 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. Purpose of request In his petition, Mr. Thomas indicates that he "does not seek to obtain any documentation, nor information involving records of a sex-crime, nor the identity of a victim of a sex-crime. 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

Shawn Williams, Esq. SPRl 7/1599 Page 2 November 28, 2017 Including no documentation or information of a sexual assault or rape." 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 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. Thomas's purpose in making the request has no bearing on the public status of any existing responsive records. The City's response In a response dated July 17, 2017, the City cites 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 City explains "[a]ll records associated with the case you cited are completely exempt" under these statutes. In responding to Mr. Thomas, the City notes that "the identity of any victim is known to you." Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 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). 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.

Shawn Williams, Esq. SPRl 7/1599 Page 3 November 28, 2017 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 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 Based on his petition, it remains unclear exactly what type of records Mr. Thomas is seeking, although he notes he is looking for various "investigatory reports." See G. L. c. 66, § lO(a)(i) (the request must reasonably describe the public record sought). To the extent that the responsive records are reports contemplated by G. L. c. 41, § 97D and G. L. c. 265, § 24C, I find that the City met its burden in responding to this request. Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean M. Thomas