Christopher Spanguolo v. Dennis, Town of - Police Department (SPR 20191738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 10, 2019 SPR19/1738 Lieutenant John Brady Town of Dennis Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear Lieutenant Brady: I have received the petition of Christopher Spanguolo appealing the response of the Dennis Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 2, 2019 and July 22, 2019, Mr. Spanguolo requested" ... any and all repmis that may have involved my grandfather who lived there" and " ... copies of all public records and aiTest records regarding [t wo identified individuals]" respectively. The Department provided responses on July 11, 2019 and July 29, 2019, denying access to responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department's responses, Mr. Spanguolo petitioned this office and this appeal, SPR19/l 738, was opened as a result. Tlte 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, § 1O A( 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 provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Lieutenant John Brady SPR19/l 738 Page 2 September 10, 2019 custodian must provide the responsive records. The Department's July Ji" and July 29'" responses In its July 11, 2019 and July 29, 2019 responses, the Depaiiment asserts that Mr. Spanguolo's " ... request[s] [are] being denied under ~xemption A. ... Mass. Gen. Law C. 41, Section 97D Rape, sexual assault and domestic violence report information prohibited ...." Exemption (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 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 part: " ... [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 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 ... violence victims' counselors ... "

Lieutenant John Brady SPR19/l 738 Page 3 September 10, 2019 G. L. C. 41, § 97D. The Department did not identify the records, categories of records or portions of records in its possession that are responsive to Mr. Spanguolo's requests. The Depmiment is reminded that to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Depmiment withheld responsive record(s) without identifying what type of records it has in its possession that it is withholding under Exemption (a). Therefore the Department must identify the records in its possession. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to withhold responsive records, the Depmiment may provide this office with un-redacted copies of the responsive records for an in camera inspection. 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 for 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 ce1iainly affect our credibility within the legal community. The Department may provide a supplemental response, identifying the records in its possession, with an explanation of its position regarding the applicability of Exemption ( a) to withhold responsive records from disclosure or provide records for in camera inspection. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public

Lieutenant John Brady SPR19/l 738 Page 4 September 10, 2019 disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Spanguolo