Dwight E. Meyer v. Falmouth, Town of - Police Department (SPR 20180386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 9, 2018 SPRlS/386 Lt. Douglas M. DeCosta Falmouth Police Department 750 Main Street Falmouth, Massachusetts 02540 Dear Lt. DeCosta: I have received the petition of Dwight Meyer appealing the response of Falmouth 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. Meyer requested "copies of all police reports produced by the [Department] or any of its employees or agents regarding [an identified individual] and the criminal acts [he or she] allegedly committed in Falmouth in [a specified time period]." The Department denied his request, claiming that the responsive record is exempt from disclosure pursuant to Exemption (a) of the Public Records Law and the Criminal Offender Record Information (CORI) Act. G. L. c. 4, § 7(26)(a); G. L. c. 6, § 168-l 78(B). Unsatisfied with the Department's response, Mr. Meyer petitioned this office and this appeal, SPR18/386, was opened as a result. Subsequent to the opening of this appeal, the Department provided a supplemental response on April 9, 2018. -----ThePublicRecord-sLaw-- ------ ------ 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. 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. Douglas M. DeCosta SPR18/386 Page2 April 9, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 (1976). Accordingly, Mr. Meyer's purpose in making 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. Meyer may wish to consider another means of seeking to obtain any existing responsive records. The Department's March 12th and April 9th responses In its March lih response, the Department indicates that Mr. Meyer's "request for public records refers to records that are specifically or by necessary implication exempted from disclosure by statute, therefore your request is denied .. .in accordance with M.G.L. c. 4 § 7(26) --------EcB,'-'--an-da-Ekl-i-t-ie-nall-y-i-ndieat-i-ng-Mr-, Me-yer's---'-~recJues-t-fe-r 13uh-lie-reeonl-s-eonmins-8rimi-nal---- ---------------- ---- Offender Record Information (CORI) and will be redacted to remove such information, in accordance with M.G.L. c. 6, § 168-178(8) and 803 CMR 2.00 -9.00 et seq." Subsequent to the opening of this appeal, the Department provided another response to Mr. Meyer on April 9th, a copy of which was provided to this office. The Department's April 9th response indicates that it "intends to withhold the ... requested records due to the applicability of.. .Exemption (a)," and "[i]n particular, G. L. c. 41, section 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

Lt. Douglas M. DeCosta SPR18/386 Page 3 April 9, 2018 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, 3 77 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 Department has cited G. L. c. 41, § 97D as applicable to withhold the records pursuant to Exemption (a). 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 G. L. C. 41, § 97D. The Department explains that "[t]he records requested contain reports of rape and sexual assault. As a result, such information must be withheld under the law." Whereas the responsive records consist of the type of information specifically exempted by statute, I find the Department may properly withhold the requested records. I understand a member of the Public Records Division staff contacted your office about this matter. Conclusion Accordingly, whereas I find the Department may permissibly withhold the requested records pursuant to G. L. c. 41, § 97D as it operates through Exemption (a), I will consider this administrative appeal closed.

Lt. Douglas M. Decosta SPRI8/386 Page4 April 9, 2018 If Mr. Meyer is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ u r r a ~ Supervisor of Records cc: Dwight E. Meyer