Kevin Rothstein v. Pittsfield, City of - Police Department (SPR 20190204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12, 2019 SPR19/204 Kerri Striebel Records Bureau City of Pittsfield Police Department 3 9 Allen Street Pittsfield, MA O1 201 Dear Ms. Striebel: I have received the petition of Kevin Rothstein, Investigative Producer at WCVB TV-5 appealing the response of the City of Pittsfield-Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rothstein requested an electronic copy, in a useable electronic format such as a delimited text/CSV or a Microsoft Excel spreadsheet, of: "data for individual Part I offenses reported or known to police from 2014-2016, as compiled for purposes of participating in the FBI's national Uniform Crime Reporting (UCR) system and other incident tracking purposes. For each individual UCR Part I offense known to police, please provide the following data fields: incident number of the offense; incident/offense date occurred; incident/offense date reported; type of offense (using UCR definitions); unfounded (yes/no), ie whether or not determined to be false or baseless complaint; unfounded date, if applicable; clearance date, if applicable; arrest date, if applicable; type of clearance ( e.g. arrest, cleared by exceptional means, etc.); exceptional clearance type, if applicable ( offender died, victim uncooperative, offender deported, prosecutor declined case, etc.); and any documentation to describe encoding systems or other keys to understanding data as maintained by your [D]epartment." On January 25, 2019, the Department provided Mr. Rothstein with a spreadsheet of information responsive to his request, except the statistical information concerning sexual assault, rape and human trafficking information. The Department withheld those records pursuant to G. L. c. 41, § 97D and G. L. c. 265, § 24C as these statutes operate through Exemption (a) of the Public Records Law. As a result of the Department's decision to withhold certain of the records, Mr. Rothstein petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his January 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

Kerri Striebel SPR19/204 Page2 February 12, 2019 29th letter, Mr. Rothstein states, "I asked for several fields but notably did not request fields or records that would identify specific individuals, whether they [are] suspects, victims, witnesses or others." Mr. Rothstein also informed this office that he consented to receiving the statistical information with the addresses of the crime location redacted. 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, § 1O (b )(iv) (w ritten 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) In its January 25th response, the Department claims it withheld responsive records under G. L. c. 41, § 97D and G. L. c. 265, § 24C, as these statutes operate 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 Public Records Law."

Kerri Striebel SPR19/204 Page 3 February 12, 2019 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 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; 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 201 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. The Department also claims that it may withhold the records pertaining to rape, or attempts to commit rape or human trafficking under G. L. c. 265, § 24C. That statute provides in pertinent part: 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

Kerri Striebel SPR19/204 Page4 February 12, 2019 public record under the provisions of section seven of chapter four. G. L. C. 265, § 24C. I find the Department has not met its burden to establish that the requested information, with certain of the information redacted as to not identify the victims of these crimes, falls within the category of reports as contemplated in the statutes. As such, the requested statistical information may not be withheld in its entirety under G. L. c. 41 § 97D and G. L. c. 265, § 24C, as these statutes operate through Exemption (a) of the Public Records Law. Order Accordingly, the Department is ordered to review the records, redact where necessary and provide the responsive records to Mr. Rothstein, 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein, WCVB TV-5