Anthony Dew v. Boston, City of - Police Department (SPR 20181617)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 16, 2018 SPRlS/1617 Martha DeMaio City of Boston Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: . I have received the petitionofAnthonyDewappeaJing the response ofthe .CityofBoston Police Department (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dew requested, "[d]ocuments on search warrant Docket# 1507SW0176 of all 24 cell phones and 2 computers that the Boston Police Forensic Unit execute the warrant on these cell phones." Mr. Dew included an identified cell phone number; an identified SIN number; and an IMEI number. Prior appeal - SPRJ 8/1308 The requested records were the subject of a prior appeal. See SPRl 8/1308 Determination of the Supervisor of Records (Supervisor) (September 12, 2018). In an August 20, 2018 response, the Department denied the request under Exemption (f) of the Public Records Law. In my September lih determination, I found that the Department's August 20th response did not contain the specificity required in a denial of access to public records under Exemption (f). On October 24, 2018, the Department provided a response denying the request in its entirety under G. L. c. 41, § 97D and G. L. c. 265, § 24C as these statutes operate through Exemption (a). The Department's October 24th response states, "[a]s the records are associated with an allegation of sexual assault, your request is denied." As a result of the October 24th response, Mr. Dew petitioned the Supervisor, and the current appeal was opened. 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 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

Martha DeMaio SPR18/1617 Page2 November 16, 2018 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) (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 ... "); 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). 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 .. Q. L. c. 4~ § 7J2q)(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. The Department has explained to this office that the requested records are associated with allegations of sexual assault, and are absolutely exempt from disclosure under the Public Records Law. Its October 24, 2018 response cites G. L. c. 265, § 24C and G. L. c. 41, § 97D as applicable to withholding responsive records. G. L. c. 265, § 24C and G. L. c. 41, § 97D state respectively: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13Bl/3, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking

Martha DeMaio SPR18/1617 Page 3 November 16, 2018 of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be determined to be a public record under the provisions of section seven of chapter four. G. L. C. 265, § 24C. 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 .... G. L. c. 41, § 97D. B urd__e_n ofs pe_cjfi_city_ in_r_es_p()_llding;duty_ to_s_egregate It is unclear how all the records are exempt, in their entirety, under G. L. c. 265, § 24C, given that this statute only allows those portions of the records containing the name of a victim to be withheld. It is also unclear how the records are reports of these offenses, or records of all communications between police officers and victims of rape and sexual assault or attempts to commit such offenses under G. L. c. 41, § 97D. The Department has not met its burden of specificity in claiming these statutes to withhold the records in their entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(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 meet its burden of demonstrating how the responsive records, in their entirety, are 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Conclusion Accordingly, I find that the Department did not meet its burden of specificity in withholding the records under G. L. c. 41, § 97D and G. L. c. 265, § 24C. The Department is ordered to provide Mr. Dew with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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.

Martha DeMaio SPR18/1617 Page 4 November 16, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Anthony Dew Shawn A. Williams, Esq.