Abby Jackson v. Cambridge, City of - Police Department (SPR 20180609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 16, 2018 SPR18/609 Mr. Jeremy Warnick Director of Communications City of Cambridge- Police Department 125 Sixth Street Cambridge, MA 02142 Dear Mr. Warnick: I have received the petition of Abby Jackson appealing the response of the City of Cambridge Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). On March 13, 2018, Ms. Jackson requested "[d]etail on an entry in the CPD police log related to an officer being sent to Adams House to take a report of a person who was assaulted." On March 28, 2018 the Department responded in an email that the request for the incident report was being denied under Exemption (a) of the Public Records Law. Ms. Jackson appealed the March 28th response based on the Department not providing how the exemption applies to the justification of non-disclosure of records and not identifying the information being redacted before documents were provided. 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, § lO(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

Mr. Jeremy Warnick SPR18/609 Page 2 May 16, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). Appeal The Department stated to Ms. Jackson that the "Statutory Exemption includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record shall not be a public record, shall be kept confidential or shall not be subject to the disclosure provision of the Public Records Law." 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, § lO(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. The Department did not meet its burden to provide the specific reasons for withholding the records pursuant to Exemption (a). Additionally, the Department has not demonstrated how the report, in its entirety, is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Conclusion Accordingly, the Department is ordered to produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within

Mr. Jeremy Warnick SPR18/609 Page 3 May 16, 2018 ten business days. A copy of 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. Ms. Jackson may appeal the substantive nature of the revised response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Abby Jackson