Brian Waller v. Everett, City of - Police Department (SPR 20201916)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2020 SPR20/1916 Capt. Paul Hamilton City of Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition of Attorney Brian Waller, on behalf of his client, appealing the response the Everett Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Waller requested all records relating to a certain incident at an identified afterschool center. The Department responded on July 8, 2020, withholding responsive records pursuant to Exemption (a) of the Public Records Law. Unsatisfied with this response, Attorney Waller petitioned this office and this appeal, SPR20/1916, 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. Appeal In its July 8, 2020 response, the Department indicates that it is withholding responsive communications pursuant to two statutes, G. L. c. 119 § 60A and G. L. c. 41 § 97D. 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

Paul Hamilton SPR20/1916 Page 2 October 21, 2020 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. The statutes cited by the Department provide, 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, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates… G. L. c. 41, § 97D. The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be

Paul Hamilton SPR20/1916 Page 3 October 21, 2020 withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119 § 60A. In its response, the Department states that “since the record involves juveniles the case is exempt from public records law. Chapter 119 s60A indicates that juvenile delinquency records shall not be open to the public (under age 18).” The Department further explains that the record “also involves sensitive issues that are prohibited from public disclosure such as sex victim and rape report information which shall be withheld from public record in accordance with Chapter 41 sec 97D.” Based on the Department’s response, I find that it has met its burden in withholding the incident report pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Where I find that the requested record is exempt from disclosure pursuant to § 97D, I decline to opine on the Department’s G. L. c. 119, § 60A claim. Conclusion Accordingly, whereas I find the Department may permissibly withhold the responsive record pursuant to Exemption (a), I will consider this administrative appeal closed. If Attorney Waller is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Waller, Esq., Sequel Law LLC