Angelina Smith v. Springfield, City of - Police Department (SPR 20200581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 8, 2020 SPR20/0581 Andrea Stone City of Springfield Office of the City Clerk 36 Court Street Springfield, MA 01103 Dear Ms. Stone: I have received the petition of Angelina Smith appealing the response of the Springfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Smith requested “two calls on March 9th 2020 to my home address [] in Springfield Massachusetts [] in regards to help with a domestic situation...” The Department provided a response to Ms. Stone on March 25, 2020, withholding responsive records pursuant to Exemption (a) of the Public Records Law. Unsatisfied with this response, Ms. Smith petitioned this office and this appeal, SPR 20/0581, was opened as a result. 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(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. 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

Andrea Stone SPR20/0581 Page 2 April 8, 2020 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.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s March 25th Response In its March 25, 2020 response, the Department asserts that the requested records are exempt from disclosure pursuant to G. L. c. 41, §97D, as it operates through Exemption (a) of the Public Records Law. 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 individuals 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 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 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,

Andrea Stone SPR20/0581 Page 3 April 8, 2020 others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates. In its March 25, 2020 response, the Department states that it “was able to locate Call for Service 20-49848, however, after reviewing the document, the City believes that the document in question is exempt from disclosure as a public record pursuant to Exemption (a)…” and cites the language of G. L. c. 41, § 97D. The Department argues that this statute “effectively states that all records of domestic violence, including actual ‘reports of abuse perpetrated by family or household members as defined in c. 209A, § 1, and all communications between police officers and victims of such offenses or abuse’ shall not be released to the public (as a public record).” In her appeal petition, Ms. Smith writes that she “need[s] this service call to use in court as evidence I contacted police to the scene to help me because my boyfriend at the time as his sister both put hands on me and were trying to take my daughter yet I was the one who was arrested for acting ‘aggressive’ for wanting my daughter returned to my care.” Based on the Department’s response, I find it has not met its burden of specificity to withhold responsive records under Exemption (a). Chapter 41, § 97D identifies several categories of recipients who may receive records of the types listed in the statute, including the responsive Call for Service. Based on Ms. Smith’s petition, it is unclear whether the requestor falls into one of these categories. The Department must clarify this matter. I understand a staff attorney from the Public Records Division contacted you but was unable to reach your prior to the issuance of this decision. Conclusion Accordingly, the Department is ordered to provide Ms. Smith with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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. Murray Supervisor of Records cc: Angelina Smith