Kathleen Turner v. Lowell, City of - Police Department (SPR 20211899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13, 2021 SPR21/1899 Jackie Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Kathleen Turner appealing the response of the Lowell Police Department (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2021, Ms. Turner requested “all documentation and police reports pertaining to the dates of December 18th, 2020; December 19th, 2020; and December 20th, 2020.” Previous appeals This request was the subject of previous appeals. See SPR21/0933 Determination of the Supervisor of Records (April 13, 2021); SPR21/0997 Determination of the Supervisor of Records (May 17, 2021); SPR21/1276 Determination of the Supervisor of Records (June 7, 2021). The Department provided a response on June 21, 2021. Unsatisfied with the Department’s response, Ms. Turner petitioned this office and this appeal, SPR21/1899, 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 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

Jackie Cook SPR21/1899 Page 2 August 13, 2021 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. The Department’s June 21st response In its June 21, 2021 response, the Department cited Exemption (a) for the redactions of documents provided to Ms. Turner. 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. The cited statute states 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 . . .

Jackie Cook SPR21/1899 Page 3 August 13, 2021 G. L. c. 41, § 97D. In the Department’s June 21st response it explained, “[t]he City has redacted information specifically protected under this statute which directly divulges the identity of the victim as well as information protected by necessary implication that can be used to identify the victim through other means such as supplemental public records requests or internet sleuthing. The redactions made to ensure the confidentiality of the victim include victim and witness names, victim and witness addresses, names of persons related to the victim, and information about the victim’s vehicle or other information that could tend to divulge the identity of the victim.” The Department further explained, “[t]hese redactions also include police car numbers, names, and sector locations that cover or assist in the area of the victim’s residence that could tend to divulge the identity of the victim. The redacted information is protected from disclosure because it can be used to identify a victim of domestic violence as prohibited under G. L. c. 41, § 97D.” To the extent the responsive records are reports of abuse perpetrated by family or household members, they may be withheld under Exemption (a). However, it is unclear how all of the responsive records are those as contemplated in G. L. c. 41, § 97D. The Department further must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Turner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Kathleen Turner Mark LeBlanc