Danielle Schwartz v. Newburyport, City of - Police Department (SPR 20181516)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 30, 2018 SPR18/1516 Richard J. Siemasko, Esq. Senior Lieutenant City of Newburyport Police Department 4 Green Street Newburyport, MA 01950 Dear Lt. Siemasko: I have received the petition of Danielle Schwartz appealing the response of the City of Newburyport Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Danielle Schwartz requested "police reports relating to an incident which the Department responded to on June 9/10, 2018" and "any communications, forms or reports." Previous appeal This request was the subject of a previous appeal. See SPR18/1277 Determination of the Supervisor of Records (September 6, 2018). I closed SPR18/1277 by ordering the Department to provide Ms. Schwartz with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided another response on September 26, 2018. Unsatisfied with the Department's response, Ms. Schwartz petitioned this office and this appeal, SPRl 8/1516, was opened as a result. 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, § IOA(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 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

Richard J. Siemasko, Esq. SPR18/1516 Page2 October 30, 2018 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, § 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) 1 In its September 26h response, the Department indicates that it is denying Ms. Schwartz's request pursuant to G. L. c. 41, § 97D as it operates 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). 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 Department cites to G. L. c. 41, § 97D as a means for withholding responsive records. G. L. c. 41, § 97D states in pertinent part: 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

Richard J. Siemasko, Esq. SPR18/1516 Page 3 October 30, 2018 maintained by the police departments in a manner that shall assure their confidentiality .... G. L. c. 41, § 97D. The Department explains that "[t]he report that [Ms. Schwartz has] requested contains accusations of domestic violence" and "is statutorily impressible for [the Department] to release." It is the finding of this office that the responsive records consist of the information related to the type specifically exempted by the above statute. Consequently, the Department has met its burden to withhold the responsive records pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a). Conclusion Given that the Department has met its burden to explain how an exemption applies to the requested records, the requested records may be withheld. Accordingly, I will now consider this administrative appeal closed. If Ms. Schwartz 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, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Danielle Schwartz