Vira D. Cage v. Amherst, Town of - Police Department (SPR 20200261)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 26, 2020 SPR20/0261 Captain Ronald A. Young Amherst Police Department 111 Main Street Amherst, MA O1 002 Dear Captain Young: I have received the petition ofVira D. Cage appealing the response of the Amherst Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see 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. Previous appeals This request was the subject of previous appeals. SPRI9/2327 Determination of the Supervisor of Records (December 2, 2019); SPR19/2517 Determination of the Supervisor of Records (January 6, 2020). The Department provided a supplemental response on January 1o th to Ms. Cage. Unsatisfied with the Department's response, Ms. Cage petitioned this office for the Department's refusal to disclose log call 19-9607 and incident report 19-243-0F. As a result, SPR20/0261 was opened. Tlte 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) (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 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 SPR20/0261 Page 2 February 26, 2020 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 January JOth response Exemption (a) In its January 1o th response the Department denied access to responsive records under Exemption (a) of the Public Records Law. 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, 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 January 10th response, the Department produced the Amherst Police General Order, Field Repmiing and Records Function #54 and Dissemination of Public Records, Memoranda 2016. The Department asse1ied, "[t]his case is a reported sexual assault. It is maintained in the Amherst Police Department as a sexual report under Log Call #19-9607 and 19-243-0F. These records are segregated in the department's Record Management System (RMS) as a sexual assault repmi ... [and] as such, these records are exempt from disclosure in its entirety." The Department further stated in paii that because the case is a reported sexual assault, pursuant to G. L. c. 41, § 97D the records cannot be redacted. G. L. c. 41, § 97D provides in pe1iinent paii: "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

Captain Ronald A. Young SPR20/0261 Page 3 February 26, 2020 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 maimer that shall assure their confidentiality .... " Based upon the Department's January 101 h supplemental response, I find the Department has met its burden to withhold incident report 19-243-0F from disclosure in its entirety pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) as established by the Legislature. However, I find it unclear why the Department cannot provide segregable portions of the responsive log call 19-9607. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a). In camera inspection In order to facilitate a determination as to the applicability of the Department's claims under Exemptions (a) to the requested log call 19-9607, the Department must provide this office with un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record, See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to an in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would ce1iainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Depmiment is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay.

Captain Ronald A. Young SPR20/0261 Page 4 February 26, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc Vira D. Cage