Flavia Perea v. Somerville, City of (SPR 20211446)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 22, 2021 SPR21/1446 Francis X. Wright, Esq. City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Wright: I have received the petition of Flavia C. Perea and Sean Roberson appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 19, 2019, Ms. Perea and Mr. Roberson, through their attorney, Peter A. Hahn, Esq., requested a specific police incident report. The City responded on December 20, 2019, claiming to withhold the responsive record pursuant to Exemption (a) of the Public Records Law, and G. L. c. 41, § 97D. See G. L. c. 4, § 7(26)(a). On March 3, 2021, Attorney Hahn reiterated his request on behalf of Ms. Perea and Mr. Roberson. On March 12, 2021, the City again denied the request, claiming to withhold the report pursuant to Exemptions (a) and (c) of the Public Records Law. Unsatisfied with the City’s response, Ms. Perea and Mr. Roberson appealed, and this case was opened as a result. Status of Requestor In their appeal petition, Ms. Perea and Mr. Roberson state that “[t]he report is being requested on the basis of [their] rights as parents” of a minor child named in the incident report. Please note that the reason for which a requestor seeks access to or a copy of a public record 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 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). Accordingly, Ms. Perea and Mr. Roberson’s status as the parents of a child named in the requested record will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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

Francis X. Wright, Esq. SPR21/1446 Page 2 June 22, 2021 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. 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. Current Appeal In their appeal petition, with regard to Exemption (a) and G. L. c. 41, § 97D, Ms. Perea and Mr. Roberson contend: What is alleged in the “incident” report does not constitute rape, sexual assault, or sexual abuse, and in Massachusetts a six-year-old cannot even be criminally culpable. A crime was not committed, could not have been committed, and there is, therefore, no victim, specifically a victim of a crime of rape, sexual abuse, or sexual assault in this instance. M.G.L. c. 41, section 97D therefore does not apply. In addition, concerning Exemption (c), Ms. Perea and Mr. Roberson contend that: [T]he names of both children involved in the alleged incident are known to all parties. . . Moreover, the names of [their] son and the other child are both contained in [their] son’s student conduct record which was provided to [them] by the school district in response to a School Records Request. Importantly, the name of the other child involved in the incident with [their] son is not redacted in the school conduct record provided to [them] by the school district. [Their] son’s case has also been widely profiled in local and national media, and the characteristics of the alleged incident are in the public domain. The City’s March 12th Response In its March 12, 2021, response, the City claims to withhold the responsive record pursuant to Exemptions (a), citing G. L. c. 41, § 97D, and also pursuant to Exemption (c) of the

Francis X. Wright, Esq. SPR21/1446 Page 3 June 22, 2021 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 relevant 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 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

Francis X. Wright, Esq. SPR21/1446 Page 4 June 22, 2021 Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its March 12th response, under Exemption (a), the City states that “the City reserves additional legal argument and its rights to supplement this response with additional details reflecting the factual basis using this exemption, in camera, for the benefit of the Supervisor of Records, in the event of an appeal.” Under Exemption (c), the City contends that the requested record “consists of information of a highly sensitive and private nature involving one or more minor children. The privacy exemption of the public records law is specifically designed to protect information relating to individuals under the age of 18. SPR14/284 (June 3, 2014). As a result, the requested

Francis X. Wright, Esq. SPR21/1446 Page 5 June 22, 2021 incident report is also exempt from disclosure under . . . Exemption (c) of the Massachusetts Public records law and is being withheld accordingly.” Based on the City’s response and the information provided in the appeal petition, it is unclear how the incident report in question falls within the type of records contemplated in G. L. c. 41, § 97D. The City must clarify this. Further, while portions of the responsive incident report may fall under Exemption (c), it is uncertain how the record can be withheld in its entirety. The City must explain whether segregable portions of the report can be provided. See G. L. c. 66, § 10(a); Reinstein, 378 Mass. at 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the City is ordered to provide Ms. Perea and Mr. Roberson a response to their request in a manner consistent with this order, the Public Records Law and its Regulations within ten 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: Flavia C. Perea and Sean Roberson