Frank L. Stanley v. Hadley, Town of - Police Department (SPR 20180157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 16,201 8 SPR181157 Sergeant Mitchell J. Kuc Town of Hadley - Police Department 15 East Street Hadley, MA 0 1035 Dear Sargent Kuc : I have received the petition of Frank Stanley appealing the response of the Town of Hadley Police Department (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 27,2017, Mr. Stanley requested the following records: "1. Any and all reports, narratives, notes of the interview of [an identified individual] by you and an [identified detective] around AugustISeptember 201 3; 2. Color photos of the Thumbdrive, evidence # 12-1 - PR; 3. Any and all property receipts, reports, narratives, and notes pertaining to property # 12-1- PR to include to whom, when, and where property was turned over to and by whom; when propertylevidence was submitted to property; and when propertylevidence was handed over to [an identified Sergeant] of Mass. State Police; 4. Warrant, complaint, authorization to extradited [sic] and statement of facts sent to [an identified Sergeant], Murfreesboro Tennessee Police Dept. . . ." The Department provided a response on December 3,2017. After the December 3rd response, Mr. Stanley, on December 11,2017, modified his first request to date and time only of the Department's interview with the identified individual and included a fifth request for "[alny and all reports regarding 12-1- PR." On December 14,2017, the Department provided another response which included a record responsive to the fourth request. The Department also denied access to responsive records pursuant to G. L. c. 41, 5 97D, as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, fj 7(26)(a). Unsatisfied with the Department's response, Mr. Stanley petitioned this office and this appeal, SPR181157, was opened as a result. 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

Sergeant Mitchell Kuc Page 2 February 16,2018 Purpose of request; identity of requester 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 (1 976). Accordingly, Mr. Stanley's purpose in malting the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "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"). As such, Mr. Stanley may wish to consider another means of seeking to obtain any existing responsive records. Tlze 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, 5 10A(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, 5 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, 5 10(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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's December 3rda nd 14~'' responses In its December 3rda nd 1 4re~sp~on ses, the Department provided a record and withheld others pursuant to Exemption (a) of the Public Records Law "due to the fact that the case involves sexual assault." The Department cited the Confidentiality of Rape and Attempted

Sergeant Mitchell Kuc Page 3 February 16,201 8 Assault Reports statute, G. L. c. 41, $ 97D, and indicated that such reports "are confidential and that the originating report, 1 1-497-OF references Rapelsexual assault." The Department indicated that, non-compliance with the confidentiality requirement would result in a penalty including a fine of not more than a $1000 or imprisonment of not more than one year, or both. However, the Department noted that "there are different portions of the report that addresses different aspects of the case. . ." Exemption (a) The Department indicated that it withheld responsive records pursuant to G. L. c. 41, $ 97D, as it operates though 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 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. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute 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 . . .

Sergeant Mitchell Kuc Page 4 February 16,20 18 A violation of this section shall be punished by imprisonment for not more than 1 year or by a fine of not more than $1,000, or both such fine and imprisonment Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, 5 lO(d)(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. The Department failed to identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer, must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, 5 lO(b)(iv); 950 CMR 32.06(3)(~)(4)H. ere, the Department withheld responsive records without identifying the records. Therefore, the Department must identify the type of record(s) it has in its possession. Further, while G. L. c. 41, 5 97D exempts from disclosure all reports of Rape and Attempted Assault, Mr. Stanley in his December 11,2017 request indicated that, "the records [he] requested for are in connection with a possession charge NOT rape." He also reiterates in his appeal that some of his requests ". . . make no reference what-so-ever to content under ch. 41, 97D." Based on Mr. Stanley's contentions in conjunction with the Department's December 14, 201 7 response, indicating that "there are different portions of the report that addresses different aspects of the case. . .," it is unclear why records falling outside G. L. c. 41, fj 97D cannot be provided to Mr. Stanley. I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the Department is hereby ordered to provide Mr. Stanley responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Stanley may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter.

Sergeant Mitchell ICuc Page 5 February 16,201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Stanley