Arlenis Joaquin v. Lowell, City of - Law Department (SPR 20180100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 5, 2018 SPR18/100 James F. Wellock, Esq. Assistant City Solicitor City of Lowell-Law Department 3 7 5 Merrimack Street, 3' Floor Lowell, MA 01852-5909 Dear Attorney Wellock: I have received the petition of Arlenis Joaquin appealing the response of the City of Lowell 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. Joaquin requested 37 categories of records that may have been generated by the Department as a result of an incident of domestic violence and other related criminal offenses. Previous appeals The responsive records were the subject of two previous appeals. See SPR17/788 and SPR17/1341 Determinations of the Supervisor of Records (June 21, 2017; October 5, 2017). I closed SPR17 /1341 by ordering the Department to provide any policies and procedures regarding domestic violence, and any certificates of training of officers for domestic violence. I also ordered the Department to provide a supplemental response concerning any records withheld under Exemption (a) as Criminal Offender Record Information (COR!) and/or under the domestic violence statute. On October 23, 2017, the Department provided a supplemental response, accompanied by records of the Department's domestic violence policies and procedures, and certificates of training in domestic violence for officers in the Department. The Department indicated that it had no further records regarding domestic violence policies, procedures or training certificates for Department Officers Shaun Devlin, Jason Gatto and Bryan Toupin. Ms. Joaquin appeals the Department's October 23'd response, and asks this office to order the Department to provide her with the records that were generated by the Department's Domestic Violence Unit to assist in defending herself in a court action. Specifically, Ms. Joaquin seeks, "the domestic violence incident report, any investigation report of allegations of assault on 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

James F. Wellock, Esq. SPR18/100 Page2 February 5, 2018 the children, any photos or video recording of the children who were allegedly assaulted, any injury reports of the children, any injury reports of the identified victim, any photos or video recordings of the identified victim, and any domestic violence training certificates for the Chief of Police and the Deputy Chief of Police." Status of the requester; Appeal process Ms. Joaquin has stated in her request that she seeks the records generated by the Department's Domestic Violence Unit to defend herself in a criminal action. The Public Records Law does not distinguish between individuals seeking public records. Ms. Joaquin should be advised that her involvement in the matter offers her no greater right of access under the Public Records Law than any other person. See G. L. c. 66, § I O(a) (public records are to be provided to "any person"); 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 ofthe requester. Therefore, Ms. Joaquin's status as a person seeking records for a criminal court process shall have no bearing on the public nature of the records. On June 29,2017, the Department notified Ms. Joaquin's attorney, Frances B. Dallmeyer that the Department would provide the requested domestic violence report to Attorney Dallmeyer for Ms. Joaquin's defense. It should be noted that the administrative process under the Public Records Law "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means." See 950 C.M.R. 32.08(l)(a). Ms. Joaquin is advised that it may be more advantageous to seek the records through the judicial process. Further, given that Ms. Joaquin has a unique right of access to the requested domestic violence report, I will consider this appeal closed with respect to the requested domestic violence report: Exemption (a) In the Department's May, June and October 2017 responses, Ms. Joaquin was advised that the Department is withholding the incident report filed with the Department as restricted by the Domestic Violence statute, G. L. c. 41, § 97D. The October 23, 2017 response informed Ms. Joaquin that the incident report, investigation report including all witness statements and notes of police officers, 911 calls from the location to the police and radio calls regarding the police response to the incident are exemption pursuant to G. L. c. 41, § 97D and G. L. c. 260 as these statutes operate through Exemption (a) of the Public Records Law. 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).

James F. Wellock, Esq. SPR18/100 Page 3 February 5, 2018 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 exemption creates 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. The Department cites G. L. c. 41, § 97D as a means for withholding responsive records. G. L. c. 41, § 97D states: 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. Your October response contends that all the requested reports may be withheld pursuant to G. L. c. 41, § 97D. When citing the language of the statute, you underlined, "all reports of abuse perpetrated by family or household members," and state that the records pertaining to domestic abuse are not considered public records and are only accessible to certain enumerated individuals. However, the Department has still not met its burden of explaining how any records subsequent to the incident report, such as any 911 call recording, injury reports and photos and/or video records of the victim and scene constitute communications between police officers and victims and may be withheld, in their entirety, under G. L. c. 41, § 97D. Criminal Offender Record Information The Department has also withheld responsive records pursuant to the Criminal Offender Record Information (CORI) Act. CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include

James F. Wellock, Esq. SPR18/100 Page4 February 5, 2018 evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information G. L. c. 6, § 167. The Department has claimed that the COR! Act allows the Department to withhold the reports of the evidence collected, the photos and video taken at the scene of the victim(s), and any injury reports or abuse of any minor children in residence at the scene. I find that the Department has not met its burden to establish that the records were created as the result of the initiation of criminal proceedings. See G. L. c. 6, § 167. The Department's October response continues to merely cite the COR! Act and G. L. c. 41, § 97D with a list of Ms. Joaquin's 37 requested records that the Department claims fall under these exemptions. Pursuant to the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. G. L. c. 66, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Furthermore, the Department did not meet its burden to identify whether the Department actually possesses each of the requested records. G. L. c. 66, § lO(b)(ii) (written response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves"). The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department must also explain why any non-exempt, segregable portions of the responsive records carmot be provided. It is my understanding that a Public Records Division staff attorney discussed this appeal with you, and that a copy of the appeal file was provided. Order Accordingly, the Department is ordered to provide requested records in its possession to Ms. Joaquin and Attorney Dallmeyer in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

James F. Wellock, Esq. SPR18/100 Page 5 February 5, 2018 Sincerely, ,~urr~ Supervisor of Records cc: Arlenis Joaquin Frances B. Dallmeyer, Esq.