Louisa M. Moller v. Framingham, City of - Police Department (SPR 20211536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 2, 2021 SPR21/1536 Victor Pereira Deputy Chief of Police Framingham Police Department 150 Concord Street Framingham, MA 01702 Dear Mr. Pereira: I have received the petition of Louisa Moller of WBZ-TV appealing the response of the Framingham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 14, 2021, Ms. Moller requested “[a]ny and all documents that mention [two named individuals].” The Department responded on June 17, 2021, providing a document and denying access to an incident report pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a)(c). Unsatisfied with the Department’s response, Ms. Moller petitioned this office and this appeal, SPR21/1536, was opened as a result. While this appeal was pending, the Department provided a supplemental response on June 23, 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 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

Deputy Chief Victor Pereira SPR21/1536 Page 2 July 2, 2021 custodian must provide the responsive records. The Department’s June 17th and June 23rd responses In its June 17, 2021 response, the Department states that it “. . . is withholding [incident report 0708966] under Exemption (a). . . . The relevant statute is G.L. c. 41, section 97D. The Police Department is also withholding the report under Exemption (c). . . .” 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 Att’y 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. In its June 23, 2021 supplemental response, the Department explains that “[t]he withheld police report, 0708966, is related to a domestic incident between husband and wife; the husband being [a named individual], a lieutenant with the Ashland Police Department. A report[] of abuse perpetrated by a family or household member, under G.L. c. 41, section 97D is confidential and therefore falls under Exemption (a). G.L. c. 41, section 97D specifically lists the accessibility of such reports. The requestor’s argument for seeking this report is not listed. Additionally, the language of the statute indicates that the statute exists for the protection of the victims of such incidents, not the potential suspects.”

Deputy Chief Victor Pereira SPR21/1536 Page 3 July 2, 2021 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. . . . G. L. c. 41, § 97D. 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. 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).

Deputy Chief Victor Pereira SPR21/1536 Page 4 July 2, 2021 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 D-oe v. Re-gistrar of- Motor V-ehicles, 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. Under Exemption (c), the Department states “[t]he record was also withheld under Exemption (c), as such matters related to family and reputation implicate privacy interests, the disclosure of which would result in personal embarrassment and are of a personal nature.” Whereas the responsive record consists of information specifically exempted by the Legislature by statute, I find the Department may permissibly withhold the requested record from disclosure pursuant to G. L. c. 41, 97D, as it operates through Exemption (a). As such, I decline to opine on the Department’s Exemption (c) claim supporting non-disclosure of the responsive record. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Moller is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Louisa Moller