Arthur G. Grenier v. Belmont, Town of (SPR 20191757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 12, 2019 SPR19/1757 Captain J. Peter Hoerr Patrol Operations Division Commander Town of Belmont Police Department 460 Concord A venue P.O. Box 130 Belmont, MA 02478-0002 Dear Captain Hoerr: I have received the petition of Arthur G. Grenier appealing the response of the Town of Belmont Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Grenier requested: "Call Log and/or Responses by the Police Depaiiment; Time Frame: 2016 to the Present" to an identified address. In a response by the Town Clerk and Records Access Officer, Ellen O'Brien Cushman, the Department provided Mr. Grenier with CAD Incident Search Results that provided certain of the h1cident Numbers; Date/Time; Location, and Incident Type. However, the Department redacted nine (9) Incident Numbers and Incident Types pursuant to Exemption (a) of the Public Records Law. The Department did not indicate which federal or state statute operating through Exemption (a) allowed the Department to withhold the information. As a result, Mr. Grenier petitioned the Supervisor of Records (Supervisor), and this appeal was opened. The Public Records La 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) (written response must "identify any records, categories ofrecords or portions ofrecords that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific One Ashburton Place, Room 1719, Bost011, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Captain J. Peter Hoerr SPR19/1757 Page2 September 12, 2019 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) The Department claimed it withheld certain of the information in the police call log it provided to Mr. Grenier under G. L. c. 41, § 98F, as this statute operates through Exemption (a) of the Public Records Law .. Exemption (a), known as the statutory exemption, pern1its 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, § 98F provides the following: Each police depaiiment and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall

Captain J. Peter Hoerr SPR19/l 757 Page 3 September 12, 2019 such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any infonnation concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the . victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the atTest of a person who has not yet reached 18 years of age. G. L. c. 41, § 98F. The language of G. L. c. 41, § 98F specifically states that police departments shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses ofp ersons arrested and the charges against such persons arrested, and that "[a]ll entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times." In its September 9, 2019 response, the Department indicates, "the information redacted [from the CAD Incident search results' page] falls into one or more of the four categories and therefore, 'specifically or by necessary implication exempted from disclosure by statute,' as set forth in MGL Chapter 4, section 7, clause 26( a).' The extent of the inforn1ation withheld or redacted by the Department is guided by the exemptions in section 98F: the fact that the section talks about 'a separate log' and forbids release of 'any entry in a log' or 'any information concerning' or 'any entry concerning' or, again, 'any entry concerning."' The Department further explains that the incident numbers are a manner of organizing a police log and making certain that the log is kept in chronological order. You posit, "[a ]n incident number does not fall outside of the log 'entry,' but has meaning only because it is part of a particular log entry."' However, I find it is unclear how "incident numbers" are identical to "names," and how dates and times of calls may be withheld or redacted from the police log under G. L. c. 41, § 98F(i)-(iv). I find the Department has not met its burden to withhold incident numbers and dates and times of the calls. Conclusion Accordingly, the Department is ordered to provide Mr. Grenier with the incident numbers and date/time, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Captain J. Peter Hoerr SPR19/1757 Page4 September 12, 2019 The Depa1iment may request reconsideration of this determination. Sincerely, Rebecca S. Murray Supervisor of Records cc: Arthur G. Grenier Ellen Cushman, Town Clerk/Records Access Officer