Jim Thorpe v. Swansea, Town of - Police Department (SPR 20191586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 21, 2019 SPR19/1586 Chief George Arruda Chief of Police Swansea Police Department 1700 GAR Highway Swansea, Massachusetts 02777 Dear Chief Arruda: I have received the petition of James Thorpe appealing the response of the Town of Swansea Police Department (Depaiiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Thorpe originally requested certain police reports. The Depaiiment provided a response to Mr. Thorpe on July 17, 2019 citing Exemption (a). Mr. Thorpe appealed the Depaiiment' s response to this office on August 7, 2019 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, § 1O (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. G. L. c. 66, § 1O (b )(iv). 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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Chief George Arruda SPR19/1586 Page 2 August 21, 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. The statute cited by the Department 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 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 depaiiments in a manner that shall assure their confidentiality; provided, however, that all such repmis 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 20J 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

Chief George Arruda SPR19/1586 Page 3 August 21, 2019 persons to bail pursuant to section 57 of chapter 276 .... G. L. C. 41, § 97D. The Department provided a supplemental response to Mr. Thorpe's appeal on August 15, 2019 stating "[a]s Mr. Thorpe is not the victim, the victim's parent or attorney, a person authorized by the victim, a law enforcement officer, or ce1iain defined counselors, he is statutorily precluded from accessing these confidential records." Conclusion In light of the Department's supplemental response, I find the Department has met its burden to withhold the requested records under Exemption (a). G. L. c. 4, § 7 (26)(a). Accordingly, I will consider this appeal closed: Sincerely, Rebecca S. Murray Supervisor of Records cc: James Thorpe