James M. Crowley v. Cambridge, City of - Law Department (SPR 20210619)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2021 SPR21/0619 Seah Levy City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue, Room #320 Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of James Crowley appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 11, 2021, Mr. Crowley requested certain filings or claims against “the City of Cambridge, Cambridge Police Department and/or Police Commissioner” between March of 2018 and January 31, 2021. The Department provided a response on March 8, 2021. Unsatisfied with the Department’s response, Mr. Crowley petitioned this office and this appeal, SPR21/0619, was opened as a result. Current Appeal In its March 8th response, the Department indicates the “documents are exempt from disclosure pursuant to G. L. c. 151B, § 5 under G. L. c. 4 § 7(26)(a) of the Public Records law.” The Department further indicates that under “G. L. c. 151B § 5, certain records, including Complaints, Investigative Records, Privileged Information, and Charges of Discrimination as well as Hearing Records where an Investigative Disposition or Full Commission Decision has not been issued are exempt from the Public Records law, and must be withheld.” 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). 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

Seah Levy SPR21/0619 Page 2 March 25, 2021 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. I find that the Department’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police - - - - - Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the records may be withheld in their entirety. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, 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). Conclusion Accordingly, the Department is ordered to provide Mr. Crowley with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. 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: James M. Crowley