Susan T. Munford v. Kingston, Town of - Police Department (SPR 20200442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 13, 2020 SPR20/0442 Lieutenant Robert C. Wells Records Access Officer Town of Kingston Police Department 244 Main Street Kingston, MA 02364 Dear Lieutenant Wells: I have received the petition of Susan Munford appealing the response of the Town of Kingston Police Department (Department) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Munford requested: "copies of the [Department] IMC reports and all [n]arratives for any and all incidents in February 2017 involving [an identified person]." The Department provided a response on Febmary 12, 2020 denying Ms. Munford's request in its entirety under G. L. c. 41, § 97D. The response states, "all reports of sexual assault and/or attempts to commit such offenses(s) are confidential and not public records. The records you have requested fall within such criteria and are not public records." In a petition received on February 31, 2020, Ms. Munford asked the Supervisor of Records (Supervisor) to open an appeal, and obtain the report(s) with the victim's name and any identifying information of the victim redacted from the record. Ms. Munford's petition included a copy of the "Application for Criminal Complaint," which she received from the Plymouth County District Court with the victim's name redacted from the record. It is Ms. Munford's contention that the Department should provide her with this record with the victim's name and other identifying information of the victim redacted from the record. As a result of Ms. Munford's petition, this appeal 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical 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. Robert C. Wells SPR20/0442 Page 2 March 13, 2020 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 p01iions 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). G. L. c. 41, § 97D The Department denied Ms. Munford's request in its entirety under G. L. c. 41, § 97D. This statute states: 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, 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, § 97D. Burden of specificity; identification of records The Department denied Ms. Munford's request without supporting its exemption claim to withhold the records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511. The Department did no1t meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Lt. Robert C. Wells SPR20/0442 Page 3 March 13, 2020 The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under G. L. c. 41, § 97D, as it operates through Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). In camera inspection In order to facilitate a determination as to the applicability of the Department's exemption claim to justify withholding records in.their entirety, the Department must provide this office with an un-redacted copy of the responsive records for an in camera inspection. 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. 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to 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 certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records at issue for in camera review without delay. The Depaiiment may provide this office with an explanation of its position regarding the applicability of the exemption claimed to withhold the responsive records. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Lt. Robert C. Wells SPR20/0442 Page 4 March 13, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan T. Munford Christopher Kenny, Esq., Clifford & Kenny, LLP