Vira D. Cage v. Amherst, Town of - Police Department (SPR 20192327)

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

Rebecca S, Murray Supervisor of Records

December 2, 2019 SPR19/2327 Captain Ronald A. Young Amherst Police Department 111 Main Street Amherst, MA 01002

Dear Captain Young:

I have received the petition of Vira D. Cage appealing the response of Amherst Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 11, 2019 Ms. Cage sought information about an investigation regarding an incident that took place around May or June 2019 involving Amherst High School Students. In an email dated November 13, 2019, the Department provided Ms. Cage a response. Unsatisfied with the Department’s response, Ms. Cage petitioned this office and as a result SPR19/2327 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(d)(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).

Department’s November 13" response In its November 13" response the Department denied access to responsive records under G., L.

c. 4, §7(26) Exemption (a) and (f) of the Public Records Law.

One Ash burton Place, Room 1719, Boston, Massachusetts 02108 * (617) 727-2832: Fax: (617) 727-5914 | sec.state.ma.us/pre * pre@sec.state.ma.us

Captain Ronald A. Young SPR19/2327 Page 2 . December 2, 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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 November 13" response, the Department stated that the responsive records are exempt pursuant to G. L. c. 41, § 97D, which provides in pertinent part:

“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 ina» manner that shall assure their confidentiality...”

_ In its November 13" response the Department also asserted that the requested records are exempt from disclosure pursuant to G. L. c. 214, § 1B which provides in relevant part:

“A person shall have a right against unreasonable, substantial or serious interference with his privacy...”

In its November 13" response the Department further stated that the requested records are exempt pursuant to G. L. c. 41, § 98F Police Department Log which provides in pertinent part:

“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

Captain Ronald A. Young SPR19/2327 Page 3 December 2, 2019

reasonable times; provided, however, that 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, shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public.”

Based on the Department’s response, I find the Department must identify any records the Department intends to withhold and provide the specific reasons for such withholding. To deny access to a record under the Public Records Law, a records access officer (RAO) must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.MLR. 32.06(3)(c)(4). Therefore, it is unclear how all the records can be withheld in their entirety.

Exemption (f) Exemption (f) permits the withholding of:

investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.

G.L.c. 4, §7 (26)(f).

A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-290,

Citing Exemption (f), the Department indicates “personal identifying information is exempt from disclosure. In particular, this exemption allows for private citizens to provide information about matters under investigation ... and encourage[s] people to come forward and co-operate with the police in matters under investigation." The Department also states that "... the exemption permits the permanent withholding of any details that would tend to identify complainants, witnesses or voluntary informants, even in those instances where an investigation has concluded.” :

Captain Ronald A. Young SPR19/2327 Page 4 December 2, 2019

Based on the Department's response, it is unclear what type(s) of records it is withholding under this exemption. 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. Consequently, the Department must identify the investigatory records and all other records in its possession that are responsive to this request. Specifically, it remains unclear why the Department cannot redact or otherwise alter the records to protect the complainants, witnesses or voluntary informants. As a result, I find that the Department has not met its burden to permit withholding of responsive records in their entirety under Exemption (f).

Conclusion

Accordingly, the Department is ordered provide Ms. Cage with a response to the request in a manner consistent with this order, the Public Records Law, 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. Rebecca Muay

, Supervisor of Records ce Vira D. Cage