Austin Tuttle v. Framingham, Town of - Police Department (SPR 20181636)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 20, 2018 SPRlS/1636 Marilia Martins Records Access Officer City of Framingham - Police Department 150 Concord Street Framingham, MA 01702 Dear Ms. Martins: I have received the petition of Austin Tuttle appealing the response of the Framingham 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, on November 2, 2018, Mr. Tuttle requested police reports regarding an incident that occurred around October 2015 at an identified address. The Department provided a response on November 2, 2018, denying access to responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department's response, Mr. Tuttle petitioned this office and this appeal, SPR18/1636, was opened as a result. Purpose of request; identity ofrequestor 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 requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Tuttle's purpose in making the request has no bearing on the public status of any existing responsive records. 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). 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

Marilia Martins SPR18/1363 Page 2 November 20, 2018 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. 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. The Department's November 2nd response In its November 2, 2018 response, the Department states that it" ... must deny [Mr. Tuttle's] request on the grounds that providing the requested records would violate Public Law, Exemption (a) G. L. c. 41, § 97D. This 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.'" Exemption (a) The Department claims 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 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 Pµblic 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

Marilia Martins SPR18/1363 Page 3 November 20, 2018 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 20J 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. In a telephone conversation with the Department on November 19, 2018, the Department confirms that the requested record concerns domestic violence, and therefore is not a public record. Accordingly, whereas the responsive record consists of information related to the type of information specifically exempted by statute, I find the Department may permissibly withhold the requested record from disclosure pursuant to G. L. c. 41, 97D, as it operates through Exemption (a). In his petition for appeal, Mr. Tuttle states "[i]n addition to denying my request to clear up my false domestic charge, Framingham PD refused to grant my request for the police report about the armed robbery I was a victim of." If Mr. Tuttle wishes to pursue an appeal regarding the second request, please be advised that you may provide this office with "complete copies of all correspondence associated with the petition, including: a copy of the letter by which the request was made; and a copy of all written responses associated with the request(s) subject to the petition." See 950 C.M.R. 32.08(g)(l), (2). Conclusion Accordingly, I will consider this administrative appeal closed.

Marilia Martins SPR18/1363 Page 4 November 20, 2018 If Mr. Tuttle 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. G. L. c. 66, § 1O (b) pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Austin Tuttle