Matthew Rocheleau v. Nantucket, Town of - Police Department (SPR 20182102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 14, 2019 SPRlS/2102 Charles Gibson Deputy Chief of Police Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554 Dear Mr. Gibson: I have received the petition of Matt Rocheleau of the Boston Globe appealing the response of the Nantucket 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. Rocheleau requested the following records: Any/all materials from any/all reports of, and investigations into, alleged criminal wrongdoing by Kevin S. Fowler, aka Kevin Spacey ... including but not limited to a report made to Nantucket Police about Mr. Fowler/Spacey on or about Oct. 31, 2018 and any resulting investigative documents and communications from that case, including but not limited to materials from a conversation Nantucket Police Sergeant Klinger had with a person who owned the Club Car restaurant during the summer of 2016. (In case this helps: According to a State Police Detective from the Cape & Islands DA office, the Oct. 31, 2016 report was made by a victim who alleged being assaulted on or about July 7-8, 2016. The victim made this report via telephone to Nantucket Police Officer Kelly). The Department responded on December 27, 2018 by denying access to responsive records under Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G. L. c. 41, § 97D. 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

Charles Gibson SPR18/2102 Page2 January 14, 2019 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) (c ustodian 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. Appeal In its December 2J1h response the Department indicates "[t]here was a report regarding the subject matter in your request on or about the date listed in your request, however these records will not be released." The Department provides the statutory language of G. L. c. 41, § 97D and asserts "[t]he records requested above involve the police investigation of an offense where the reports are protected from release as a matter of law by Chapter 41, section 97D of the General Laws." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specificaliy 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. Such statutes expressly limit the dissemination of particular records to

Charles Gibson SPR18/2102 Page 3 January 14, 2019 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. G. L. c. 41, § 97D 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 .... G. L. C. 41, § 97D. In his appeal petition Mr. Rocheleau indicates "[t]he Globe understands that given the nature of the alleged crime, some materials may not be subject to disclosure or may need to be redacted. But the Globe disagrees with the department's assertion that no materials whatsoever pertaining to this case can be released. The Globe contends that some materials related to this case can and should be provided as a matter of public record." In support of his position, Mr. Rocheleau suggests that "[f]or example, the statute cited by the department says reports of sexual assault and communications between police officers and victims of such offenses shall not be public. But according to documents from other agencies involved in investigating this case, Nantucket Police department's investigation into this allegation involved more than just the victim's initial report and subsequent communications with the victim. There was, for example, at least one other conversation that a Nantucket Police department official had with at least one other potential witness and which was presumably documented." Based on its response, it is unclear which responsive records the Department possesses. It is also unclear how all the responsive records constitute "reports of rape and sexual assault or attempts to commit such offenses" or "communications between police officers and victims of such offenses or abuse" that are exempt from disclosure under G. L. c. 41, § 97D. See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories ofrecords 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 ...." ); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must also clarify whether any responsive records have previously been made available in relevant court proceedings. Conclusion Accordingly, the Department is ordered to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Charles Gibson SPR18/2102 Page 4 January 14, 2019 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matt Rocheleau