Catherine Malloy v. Attleboro Police Department (SPR 20192251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 18, 2019 SPR19/2251 Lt. Brian Kelley Attleboro Police Department Records Department 12 Union Street Attleboro, MA 02703 Dear Lt. Kelley: I have received the petitions of Catherine Malloy appealing the response of the Town of Attleboro (Town) to request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 2, 2019, Ms. Malloy requested five arrest records for one individual for an incident which occurred on May 4, 2011. 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, § 1O (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). Status oftlte requestor; reason for the request 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 G. L. c. 66, § lO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Ms. Malloy's interest in obtaining the reports One Ashbu1ion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lt. Brian Kelley SPR19/225 l Page 2 November 18, 2019 shall have no bearing on the public nature of the record. Whereas, Ms. Malloy seeks the report for a court process, she may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Ms. Malloy may wish to consider another means of seeking to obtain any existing responsive records, The Town's October 1111 Response The Department provided a response to Ms. Malloy on October 17, 2019 denying the records in their entirety citing Exemption (a). Unsatisfied with the Town's response, Ms. Malloy appealed and SPR19/2251 was opened as a result. 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). 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. In its October 1 t 11 response, the Town stated that the records are exempt pursuant to G. L. c. 41, § 97D, which provides in pertinent part: All repmis 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 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 depmiments in a manner that shall assure their confidentiality ....

Lt. Brian Kelley SPR19/2251 Page 3 November 18, 2019 Burden ofs pecificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. 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; Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemption are narrowly construed and are not blanket in nature). In her appeal petition, Ms. Malloy indicates that she is seeking arrest records for charges involving: Assault, Burglary, Damage to Property/Deface Prope1iy, Malicious Destruction of Property and Threats to Commit Crime, which appear to be unrelated to the types of records contemplated by G. L. c. 41, § 97D. Based upon a review of the file, it appears that the Town's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites the statute without any further explanation as to the 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 for compliance with the Public Records Law. G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the Town is ordered to provide Ms. Malloy a response 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. Murray Supervisor of Records cc Catherine Malloy