Nicole M. Avitabile, Esq. v. Pembroke, Town of - Police Department (SPR 20191886)

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

Rebecca S, Murray Supervisor of Records

September 26, 2019 SPR19/1886

Richard Wall

Chief of Police

Town of Pembroke Police Department 80 Center Street

Pembroke, MA 02359

Dear Chief Wall:

I have received the petition of Nicole M. Avitabile, Esq. of Rawson, Merrigan & Litner, LLP appealing the response of the Town of Pembroke Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Avitabile requested: “all police reports involving motor vehicle accidents in your possession, custody or control from 8/26/2019 to present to be sent to me in electronic format.” .

The Town provided Attorney Avitabile with redacted call logs, motor vehicle crash reports, and a response that was a check-off form listing exemptions in the Public Records Law. The Town indicated that it redacted information due to the Drivers’ Privacy Protection Act. See 18 U.S.C. § 2721. Asa result, Attorney Avitabile petitioned the Supervisor of Records (Supervisor), and this appeal was opened.

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

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Chief Richard Wall SPR19/1886 Page 2 September 26, 2019

burden of establishing the applicability of an exemption). 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 Department contends in its response that accompanied the redacted records that certain information is prohibited from disclosure under the Driver’s Privacy Protection Act (DPPA). See 18 U.S.C. § 2721. A review by this office of the redacted records provided to Attorney Avitabile reveals that the Department withheld names, addresses, dates of birth, drivers’ license numbers or driver’s identification numbers, social security numbers, drivers’ license plate numbers/identification, and vehicle identification numbers (VIN#). .

In her petition, Attorney Avitabile objected to the redaction of the names and addresses of the individuals involved in the motor vehicle accidents/crashes. It is my understanding the information contained in the call logs and motor vehicle accident reports is information obtained directly from the individuals in the logs and accident reports. While some of the information may also be available from the Registry of Motor Vehicles (RMV), the call logs and accident reports are created by the Department independent of the information held by the RMV. The DPPA does not apply to record information that a government custodian develops on its own.

Chief Richard Wall SPR19/1886 Page 3 September 26, 2019

Therefore, I find the Department has not met its burden of specificity in withholding the names and addresses, and other redacted information from the records under the DPPA, as it operates through Exemption (a) of the Public Records Law.

Burden of specificity in claiming exemptions

Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how all the redacted information in the records is exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass, 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Conclusion

Accordingly, the Department is ordered to provide Attorney Avitabile with a response to the request, 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.

Sincerely,

Rebecca S. Mura

Supervisor of Records

ce: Nicole M. Avitabile, Esq.