Larry L. Flores v. Harwich, Town of - Police Department (SPR 20181985)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPRlS/1985 Lieutenant Kevin M. Considine Town of Harwich Police Department 183 Sisson Road Harwich, MA 02645 Dear Lieutenant Considine: I have received the petition of Larry L. Flores appealing the response of the Town of Harwich Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Flores requested a copy of a report of an incident that occurred on a certain date involving two identified persons and an identified address. The Department provided Mr. Flores with a November 13, 2018 response, denying his request for the record, in its entirety, pursuant to Exemption (a) and G. L. c. 209A, § 8. As a result, Mr. Flores petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the Requestor; reason for the request The Public Records Law does not distinguish between individuals seeking public records. Mr. Flores' status as an individual seeking a restricted record for a court proceeding does not provide him with any greater right of access to public records than any other person. See G. L. c. 66, § lO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requestor. Therefore, Mr. Flores' interest in obtaining the incident report shall have no bearing on the public nature of the record. Whereas, Mr. Flores seeks the report for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. 950 C.M.R. 32.08(1)(a). 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

Lt. Kevin M. Considine SPR18/1985 Page2 December 21, 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, § 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 ... "); 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 ofrecords 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. In its November 13th response to Mr. Flores and in its December 12th response to this office, the Department states that the report pertains to domestic violence which was information communicated from the victim to the Department. G. L. c. 209A, § 8 states in pertinent part: ... [a]ll confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiffs attorney, to other specifically authorized by the plaintiff. .. to prosecutors, victim-witness advocates ... domestic violence victim's counselors ... sexual assault counselor ... law enforcement officers ... Such confidential portions of the court records shall not be deemed to be public records under the provisions of clause twenty-sixth of section 7 of chapter 4.

Lt. Kevin M. Considine SPR18/1985 Page 3 December 21, 2018 G. L. c. 41, § 97D--:--domestic violence report In the December 21st discussion with a Public Records Division staff attorney, you explained that in addition to the court-issued 209A restraining order, the Department has a one paragraph report that is a narrative communication from the victim to the police officer pertaining to incidences of domestic violence she encountered. This report is the specific record that Mr. Flores requested. The Department asserts that the report is a narrative communication between victim and the Department that is restricted under G. L. c. 41, § 97D and Exemption (a). G. L. c. 41, § 97D states: 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 maintained by the police departments in a manner that shall assure their confidentiality ... After review of the Department's responses and the information received by this office during the December 21st discussion, I find that the Department has met its burden of specificity in withholding the incident report in its entirety under G. L. c. 41, § 97D as it operates through Exemption (a). Conclusion Accordingly, whereas the Department has met its burden of specificity in withholding the responsive record in its entirety, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Larry L. Flores