Jingli Kiger v. Brookline, Town of - Police Department (SPR 20181591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 13, 2018 SPRlS/1591 Deputy Chief Myles Murphy Town of Brookline -Police Department 350 Washington Street Brookline, MA 02445 Dear Deputy Chief Murphy: I have received the petition of Jingli Kiger appealing the response of the Brookline Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kiger requested a police report regarding an identified incident, 2017-20907, occurring on April 9, 2017, at a certain address. Previous appeal This request was the subject of a previous appeal. See SPR18/1591 Determination of the Supervisor of Records (November 15, 2018). In my November 15th determination, I indicated that in order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to withhold responsive records, the Department should provide this office an un-redacted copy of the responsive records for in camera inspection. The Department provided responsive records on November 23, 2018, and I would like to thank it for its cooperation. Exemption (a) The Department claimed it withheld responsive records under 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 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

Deputy Chief Myles Murphy SPR18/1591 Page2 December 13, 2018 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 offenses, 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims' counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 201 of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 .... G. L. C. 41, § 97D. Upon in camera review of the responsive records, I find the Department has not met its burden to establish that the requested records fall within the category of reports as contemplated in the statute. As such, the requested records may not be withheld in their entirety under G. L. c. 41 § 97D, as it operates through Exemption (a) of the Public Records Law.

Deputy Chief Myles Murphy SPRlS/1591 Page 3 December 13, 2018 Conclusion Accordingly, the Department is ordered to review Ms. Kiger's request, redact where necessary and provide Ms. Kiger with responsive records, 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. Sincerely, ·~~ Rebecca S. Murray Supervisor of Records cc: Jingli Kiger