David Gainey v. Northampton, City of - Police Department (SPR 20191649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11,isor ofR ecords August 27, 2019 SPR19/1649 Jennifer DiCarlo Principal Clerk Records Bureau N01ihampton Police Depaiiment 29 Center Street Northampton, MA 01060 Dear Ms. Di Carlo: I have received the petition of David Gainey appealing the response of the Northampton Police Department (Depaiiment) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Gainey requested access to police reports from 2003 and 2004. The Department provided Mr. Gainey with a response on August 13, 2019, denying his request for the records, in their entirety, pursuant to Exemption (a) and G. L. c. 4, § 7(26). As a result, Mr. Gainey petitioned this office, and this appeal, SPRl 9/1649, was opened as a result. Status of the requestor; reason for the request The Public Records Law does not distinguish between individuals seeking public records. Mr. Gainey's status does not provide him with any greater right of access to public records than any other person. See G. L. c. 66, § lO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requestor. Therefore, Mr. Gainey's interest in obtaining the reports shall have no bearing on the public nature of the record. Whereas, Mr. Gainey seeks the rep01i for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. 950 C.M.R. 32.08(1)(a). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governniental 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

Jennifer DiCarlo SPR19/1649 Page 2 August 27, 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, § 1O (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). Exemption (a) 111 In its August 13 response to Mr. Gainey, the Department indicates its denial of access to the requested records, citing Exemption (a) and G. L. c. 4, § 7 (26)(a). 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 Comi, 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 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

Jennifer DiCarlo SPR19/1649 Page 3 August 27, 2019 section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public repmis and shall be maintained by the police depaiiments 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 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 persons to bail pursuant to section 57 of chapter 276 .... G. L. c. 41, § 97D. In a telephone conversation with the Department on August 27, 2019, the Department confirms that the requested record concerns domestic violence. Accordingly, whereas the responsive record consists of information related to the type of information specifically exempted by the Legislature by statute, I find the Depaiiment may permissibly withhold the requested record from disclosure pursuant to G. L. c. 41, 97D, as it operates through Exemption (a). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Gainey is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. G. L. c. 66, § 1O (b) pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Gainey