Justin George v. Dracut, Town of (SPR 20192305)

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

Rebecca S. Murray Supervisor of Records:

November 26, 2019 SPR19/2305

Peter Bartlett

Chief of Police

Dracut Police Department 110 Loon Hill Rd.

Dracut, MA 01826

Dear Chief Bartlett:

I have received the petition of Justin George appealing the response of the Dracut Police Department (Department) to a request for public records. G. L. ¢. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. George requested a copy of an identified police report: The Department denied his request claiming the responsive record is exempt from disclosure pursuant to G. L. c. 41, § 97D, as the statute operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a).

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.MLR. 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); 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). 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, § 10(b)(viii); see also 950 C.MLR. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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 Peter Bartlett SPR19/2305 Page 2 . November 26, 2019

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 ‘ ndividuals 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, § 97D

G.L.c. 41, § 97D provides that:

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 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 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 1 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,

Chief Peter Bartlett SPR19/2305 Page 3 November 26, 2019

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, § 98F provides the following:

Each police department 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 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 information 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 arrest of a person who has not yet reached 18 years of age.

Burden of specificity in responding and claiming exemptions

Under the Public Records Law, the burden shall be on the custodian to with specificity the exemption which applies. 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...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511.

The Department asserts that “[a]fter Consulting with town counsel...I am unable to provide you with any police reports or information regarding your request” claiming it was “exempt from public release under M. G. L chapter 41 section 97D.” However, it remains unclear how the statute and exemption applies to withhold the requested record, The Department must provide a detailed response to specifically explain how the exemptions apply to withhold its identified responsive records in compliance with the Public Records Law. |

Chief Peter Bartlett SPR19/2305 Page 4 November 26, 2019

Order

Accordingly, the Department is ordered to provide Mr. George 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.

Alora

kebecea S. Murray Supervisor of Records

ce; Justin George