Glenn Mattson v. Whitman, Town of - Police Department (SPR 20200955)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2020 SPR20/0955 Melissa Madden Records Clerk Town of Whitman Police Department 20 Essex Street Whitman, MA 02382 Dear Ms. Madden: I have received the petition of Glenn Mattson appealing the response of the Town of Whitman Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Mattson requested: “the police report written in his case Comm. v. Mattson, H60086 and all investigation records, December 11, 1974.” In a June 3, 2020 response, the Department denied Mr. Mattson’s request under Exemption (a) and G. L. c. 41, § 97D. As a result, Mr. Mattson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor; unique right of access In Mr. Mattson’s petition, he asserts, “…I have a right to this material under the freedom of information act as the records are for a new trial motion I’m representing to the court.” Mr. Mattson should be advised, the reason for which a requestor seeks access to, or a copy of, public records does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to 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

Melissa Madden SPR20/0955 Page 2 June 30, 2020 records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.") 950 C.M.R. 32.08(1)(a). As such, Mr. Mattson may wish to consider another means of obtaining the records pertaining to his conviction. 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) (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). Exemption (a) The Department claims the records Mr. Mattson requested pertain to a sexual assault and are restricted by G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Exemption (a) states: 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.”

Melissa Madden SPR20/0955 Page 3 June 30, 2020 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 The Department cites G. L. c. 41, § 97D as applicable to withhold the report(s) and other records requested by Mr. Mattson. G. L. c. 41, § 97D 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. The Department did not detail how all the responsive records may be withheld from public disclosure under G. L. c. 41, § 97D, as it operates through Exemption (a). Burden of specificity; duty to segregate The Department denied Mr. Mattson’s request under Exemption (a) and G. L. c. 41, § 97D, as it operates through Exemption (a), without supporting its exemption claim to withhold all 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, § 10(b)(iv); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not 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

Melissa Madden SPR20/0955 Page 4 June 30, 2020 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, the Department is advised that 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, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). If the Department is withholding records, it must identify what records it has in its possession that are responsive and that the Department withheld from disclosure. Conclusion Accordingly, the Department is ordered to provide Mr. Mattson with a response to the request, 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: Glenn Mattson