Samuel M. Hausman, Esq. v. Foxborough, Town of - Police Department (SPR 20210580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2021 SPR21/0580 Chief Michael Grace Foxboro Police Department 8 Chestnut Street Foxboro, MA 02035 Dear Chief Grace: I have received the petition of Samuel M. Hausman, Esq. of Hausman Law Offices appealing the response of the Foxboro Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 10, 2021, Attorney Hausman requested, “… a redacted version of an incident report from 2005 with the alleged complainants' names and personal information redacted.” Previous appeal This request was the subject of previous appeal. See SPR21/0430 Determination of the Supervisor of Records (March 4, 2021). The Department responded on March 4, 2021. Unsatisfied with the response, Attorney Hausman appealed and SPR21/0580 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) (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). 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

Chief Michael Grace SPR21/0580 Page 2 March 23, 2021 Department’s March 4th response In its March 4th response, the Department denied access to responsive records under 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, 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 March 4th response, the Department cited, G. L. c. 41, § 97D indicating that the records are exempt from disclosure. 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… G. L. c. 41, § 97D. The Department asserted, “…the subject Police Report … relative to … [the] investigation of an alleged sexual assault[;] it is the position of FPB that said report, even in redacted form, has properly been withheld from disclosure in accordance with the clear and unambiguous language of G.L. c. 41, §97D … pursuant to G.L. c. 4, §7, clause Twenty-sixth (a),

Chief Michael Grace SPR21/0580 Page 3 March 23, 2021 … which exempts from the definition of ‘public records’ materials or data which are ‘specifically or by necessary implication exempted from disclosure by statute,’ we contend that the FPD acted appropriately by declining your request for release of said Report as a public record.” Based upon the Department’s March 4th supplemental response, and as the records are restricted from disclosure in its entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Hausman 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 of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Samuel M. Hausman, Esq.