Greta Jochem v. Northampton, City of - Police Department (SPR 20191697)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 4, 2019 SPR19/1697 Jane Lawnicki Records Supervisor City of Northampton-Police Department 29 Center Street Northampton, MA 01060-3090 Dear Ms. Lawnicki: I have received the petition of Greta Jochem of the Daily Hampshire Gazette appealing the response of the Northampton Police Department (Depaiiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 2, 2019, Ms. Jochem requested "[a]ll reports made by The Loomis Chaffee School to the Northampton Police over the last five years [a nd] [a ]ny rep01i about [a n identified individual] in the last ten years." The Depaiiment responded on August 15, 2019, indicating that it does not possess records responsive to the first item and denying access to a record responsive to Item 2, pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department's response, Ms. Jochem petitioned this office and this appeal, SPRl 9/1697, was opened as a result. 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, § 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) (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. If there are any fees associated with a response a written, good faith estimate must be 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

Jane Lawnicki SPR19/1697 Page 2 September 4, 2019 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. The Department's August 151 response " In its August 15, 2019 response, the Depaiiment asse1is that a report involving the named individual is being withheld pursuant to Exemption (a), as "[t]his exempts any material that is prohibited from being released by law: Chapter 265 §24C states that any arrest, investigation or complaint for sexual assault shall be withheld from public records." Exemption (a) The Department claims that it withheld the report under G. L. c. 265, § 24C, as it operates 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 reco1·ds 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 provides in relevant pmi: 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,

Jane Lawnicki SPR19/1697 Page 3 September 4, 2019 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 public record under the provisions of section seven of chapter four. Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph .... G. L. c. 265, § 24C. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to redact portions of the responsive records, the Department must provide this office with an un-redacted copy of the report for an in camera review without delay. 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) ( administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted f01: the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Jane Lawnicki SPR19/1697 Page 4 September 4, 2019 Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Greta J ochem