Adam Garcia v. Whitman, Town of - Police Department (SPR 20190734)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 18, 2019 SPR19/734 Tracy Briggs Records Clerk Town of Whitman Police Department 20 Essex Street Whitman, MA 02382 Dear Ms. Briggs: I have received the petition of Adam Garcia appealing the response of the Town of Whitman - 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. Garcia requested a copy of a record pertaining to an incident that occurred on a certain date. The Department provided a March 14, 2019 response denying Mr. Garcia's request pursuant to Exemption (a) of the Public Records Law. As a result, Mr. Garcia petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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, § 1 O(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). 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

Tracy Briggs SPR19/734 Page2 April 18, 2019 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. 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 The Department informed this office on April 10, 2019, and during a conversation with a Public Records Division staff attorney on April 18th, that the Department is withholding one record, in its entirety, because it is a report of an incident of domestic violence and may be withheld under G. L. c. 41, § 97D. G. L. 41, § 97D provides: " .... [a ]ll 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 ... violence victims' counselors ... "

Tracy Briggs SPR19/734 Page 3 April 18, 2019 G. L. C. 41, § 97D. Where the incident report withheld by the Department is the type of record or information that G. L. c. 41, § 97D restricts from public disclosure, I find that the record is not a public record subject to disclosure. After a further response and discussion with this office, I find that the Department has now met its burden to withhold the record under G. L. c. 41, § 97D as it operates through Exemption (a). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Garcia is not satisfied with the resolution of this appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § IO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Adam Garcia