Cody Shepard v. East Bridgewater Police Department (SPR 20180259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 14, 2018 8PR18/259 Scott C. Allen Chief of Police Town of East Bridgewater Police Department . 153 Central Street, P.O. Box 475 East Bridgewater, MA 02333 Dear Chief Allen: I have received the petition of Cody Shepard of The Brockton Enterprise appealing the response of the Town of East Bridgewater 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. Shepard requested: 1. The total number of police responses to an identified address between May 1, 2004 and December 1, 2015, including the number and types of each call; 2. Any incident reports regarding police responses for hazardous material incidents to the address between May 1, 2004 and December 1, 2015; 3. Any 911 audio recordings made by an identified person or another identified person at the address, between May 1, 2004 and December 1, 2015; and 4. Any incident and supplemental reports related to a police response to the address on March 10,2013. Previous appeal The responsive records were the subject of a previous appeal. See SPR18/067 Determination ofthe Supervisor ofRecords (Supervisor) (January 30, 2018). On January 4, 2018, the Department denied Mr. Shepard's public records request, in its entirety, pursuant to Exemption (f) ofthe Public Records Law. As a result, Mr. Shepard petitioned the Supervisor, and appeal SPR18/067 was opened. In my January 30th determination, I found that in claiming Exemption (f), the Department had not met its burden of specifically explaining how disclosure would prejudice an investigation, and not providing the records in a redacted format. The Department reassessed its Exemption (f) claim, and provided records in a redacted format on February lih. 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

Chief Scott Allen SPR18/259 Page2 March 14, 2018 The basis for Mr. Shepard's February 28th petition to the Supervisor involves the Department's withholding of certain records pursuant to G. L. c. 41, § 97D, claiming that the records related to domestic violence and are consequently not public. Mr. Shepard seeks a response from the Department detailing how many records and a description of the records the Department is withholding under G. L. c. 41, § 97D. As a result, the current appeal was opened. The Public Records Law The Public Records Law strongly fuvors disclosure by creating a presnmption-t,HhQ1atriaUc.ll,__ ______ governmental records are public records. G. L. c. 66, § 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, § 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, § 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). The Department's February 12, 2018 response The Department's February 12th response that accompanied the records provided to Mr. Shepard indicates that all reports related to domestic violence were withheld pursuant to G. L. c. 41, § 97D. 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). 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

Chief Scott Allen SPR18/259 Page 3 March 14, 2018 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 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. Your February 12th response contends that all reports related to domestic violence will be withheld pursuant to G. L. c. 41, § 97D. However, the Department has not met its burden of identifying how many records the Department is withholding, and has not described what records it has in its possession, custody and/or control that are being withheld under G. L. c. 41, § 97D. 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 ... "). Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under G. L. c. 41, § 97D. 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, § IO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify how many and what type ofrecord(s) it has in its possession that the Department withheld. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Shepard with a response to the request, provided 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.

Chief Scott Allen SPR18/259 Page 4 March 14, 2018 Sincerely, ~a~ Supervisor of Records Emerson Pena, Esq.