Michael R. Graham v. Haverhill, City of - Police Department (SPR 20182099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 9, 2019 SPRlS/2099 Michael Wrenn Administrative Division Commander City of Haverhill Police Department 40 Bailey Blvd Haverhill, MA 01830 Dear Mr. Wren: I have received the petition of Michael Graham appealing the response of the City of Haverhill 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. Graham requested "any and all reports/accusations ofme committing sexual assaults on any person between the dates of 1991 -199<5." The Department denied Mr. Graham access to the responsive records, sex victim and rape report information, citing G. L. c. 265, §24C and G. L. c. 97D as those statute operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with this response, Mr. Graham petitioned this office, and this appeal 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, § 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). 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); 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. 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

Michael Wrenn SPR18/2099 Page 2 January 9, 2019 Exemption (a) The Department has advised Mr. Graham that it is withholding the requested report pursuant to Sex Victim and Rape report information statutes under Exemption (a) of the Public Records Law. G. L. c. 41, § 97D. Exemption (a), also 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. The Department 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 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

Michael Wrenn SPR18/2099 Page 3 January 9, 2019 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. 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. 265, § 24C and G. L. c. 41, § 97D, as it operates through Exemption (a). Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Graham