Zachary Conley v. Quincy, City of - Police Department (SPR 20192535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supeni/sor ofR ecords January 7, 2020 SPR19/2535 Lt. Terence McDonnell Records Access Officer Quincy Police Department 1 Sea Street Quincy, MA 02169 Dear Lt. McDonnell: I have received the petition of Zachary Conley appealing the response of the Quincy Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 25, 2019, Mr. Conley requested records for an incident which occurred on September 9, 2019. 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). The Department's December 10111 Response The Department referenced "incident # 19044909 and provided a response to Mr. Conley on December 10, 2019 denying the records in their entirety, citing Exemption (a). The Depmiment stated that "the requested record includes allegations of abuse." Unsatisfied with the Department's response, Mr. Conley appealed and SPRl 9/2535 was opened as a result. 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 ·

Lt. Terence McDonnell SPR19/2535 Page 2 January 7, 2020 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 December 1o th response, the Department explained 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 repmis 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 .... Burden of specificity 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, 3 78 Mass. 281, 289-90 (1979) (the statutory exemption are narrowly construed and are not blanket in nature).

Lt. Terence McDonnell SPR19/2535 Page 3 January 7, 2020 In his appeal petition, Mr. Conley indicates that he is seeking an incident record for a September 9, 2019 for a break-in on a home in Quincy which appears to be umelated to the type ofrecords contemplated by G. L. c. 41, § 97D. Based upon a review of the file, it appears that the Depatiment' 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 fmiher 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 Department is ordered to provide Mr. Conley 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, ~ I T ~ Supervisor of Records cc Zachary Conley