Kevin Truland v. East Longmeadow, Town of - Police Department (SPR 20192099)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 29, 2019 SPR19/2099 Chief Jeffrey D. Dalessio Town of East Longmeadow-Police Department 160 Somers Road East Longmeadow, MA O1 028 Dear Chief Dalessio: I have received the petition of Kevin Truland, Esq. of Morrison Mahoney, LLP appealing the response of the East Longmeadow 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 12, 2019, Attorney Truland requested " ... copies of any and all records related to any rep01is regarding investigation of the motor vehicle accident that occurred on Chestnut Street in East Longmeadow, Massachusetts ... " Attorney Truland indicates that the records, include "but not limited to all materials and correspondence, 911 call logs, investigative records, reports, recorded witness statements, transcribed witness statements, citations, drawings, depictions, photographs of evidence, photographs of motor vehicle damage, or any other photographs, logs, notes, and documentation of any and all correspondence (paper or electronic) by any [Depaiiment] employee to any other individual or entity regarding the motor vehicle accident and the involved." The Depaiiment responded on August 23, 2019, providing certain responsive records, and denying access to others pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department's response, Attorney Truland petitioned this office and this appeal, SPR19/2099, 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 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

Chief Jeffrey Dalessio SPR19/2099 Page 2 October 29, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record 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, Attorney Truland's purpose in making the request has no bearing on the public status of any existing responsive records. It should 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(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Truland may wish to consider another means of seeking to obtain any existing responsive records. The Department's August 23rd response In its August 23, 2019 response, the Department states that it is disclosing " ... the accident report, photographs of the vehicle damage and the public record log from July 13, 2015 ... " The Department futiher states that it is" ... denying the remainder of the request in accordance with Exemption A of G.L. chapter 4§7 as this information is CORI and therefore not public record." Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Chief Jeffrey Dalessio SPR19/2099 Page 3 October 29, 2019 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. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. 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); see also 950 C.M.R. 32.06(3)(c)(4). Here, although the Department states that it is "at this time denying the remainder of the request in accordance with [Exemption (a)] ... [,]" it is unclear if the remaining records contain categories of records as reflected in Attorney Truland' s request. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld under Exemption (a). Further, the Depaiiment's response did not contain the specificity required in a denial of access to public records. Instead, the Depaiiment merely cites Exemption (a) and CORI without any fmiher explanation as to the exemption's or statute's applicability to the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § lO(b)(iv). Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals

Chief Jeffrey Dalessio SPR19/2099 Page 4 October 29, 2019 or entities. Consequently, although the Department asserts that" ... this information is CORI and therefore not public record[,]" it remains unclear how the CORI statute specifically or by necessary implication permits it to withhold the requested records from disclosure. Additionally, I find the Department did not meet its burden of explaining with specificity how the remainder of the requested records, in their entirety, are 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). Any non-exempt; segregable pmiion of a public record is subject to mandatory disclosure. G. L c. 66, § lO(a). Conclusion Accordingly, the Department is ordered to provide Attorney Truland with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Murray , Supervisor of Records cc: Kevin Truland, Esq.