Scott Mattson v. Brockton, City of - Police Department (SPR 20191819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

September 19, 2019 SPR19/1819

Sergeant Brenda I. Perez

City of Brockton Police Department 7 Commercial Street

Brockton, MA 02302

Dear Sergeant Perez:

Ihave received the petition of Scott Mattson appealing the response of the City of _ Brockton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see. also 950 C.MLR. 32.08(1). Specifically, Mr. Mattson requested a copy of the statement that [an identified person] made to the [Department], between 2010-2011.”

The Department provided Mr. Mattson with a copy of G. L. c. 41, § 97D to indicate that it withheld the statement of the identified person under this statute, As a result, Mr. Mattson petitioned the Supervisor of Records (Supervisor), stating, “under M.G.L. 66, § 10 I am entitled to receive the requested documents; [t]he (CORI) information that the agency seek to withhold pertain to my personal information.” This office opened an administrative appeal based on Mr. Mattson’s petition.

Status of the requestor; reason for the request

Mr. Mattson indicated in his petition that he has a personal interest in the requested record. It is important for Mr. Mattson to note that the Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief | of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Mattson’s status will play no role in a determination as to whether the records should be disclosed to the public.

It should also be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual,

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

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has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Mr. Mattson may wish to consider another means of seeking to obtain any existing responsive records.

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, § 10A(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, § 10(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).

The Department’s September 11, 2019 email

After this appeal was opened, you provided this office with a September 11'" email to explain that the record has been withheld under G. L. c. 41, § 97D, as the report involves a rape and sexual assault. You state, “[flurthermore, Mr. Mattson’s requesting a copy of [the identified person’s] statement directly violates the ‘communication between police officer and victims of such offenses...shall assure their confidentiality’ under Ch, 41 Sec 97D.”

In a conversation with a Senior Attorney in the Public Records Division after this appeal _ was opened, you indicated that G. L. c. 41, § 97D falls under Exemption (a) in the Public Records Law.

Exemption (a)

Exemption (a), known as the statutory exemption, permits the withholding of records that specifically or by necessary implication exempted from disclosure by statute

G.L. c. 4, § 7(26)(a).

A governmental entity 1 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

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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 “shal! 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 Department contends that the statute that allows the Department to withhold the record in its entirety under Exemption (a) is G. L. c. 41, § 97D. This statute states:

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 | 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 departments 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 | 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 the telephone conversation with a Senior Attorney in the Public Records Division, you explained that the Department is in possession of a report pertaining to an incident of sexual assault involving the identified person. Where the report meets the criteria restricted from disclosure in its entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden to withhold the report and statements made by the identified person/victim in its entirety.

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Conclusion

Accordingly, I find that the Department has properly withheld the responsive record pursuant to G. L. c, 41, § 97D as it operates through Exemption (a) of the Public Records Law. If ‘Mr. Mattson 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. See G, L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

UB berea

Kobeces S. Murray Supervisor of Records

cc: Scott Mattson