Brian Petrini-Smith v. Natick, Town of - Police Department (SPR 20212090)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2021 SPR21/2090 Mary Carney Records Division Town of Natick Police Department 20 East Central Street Natick, MA 01760 Dear Ms. Carney: I have received the petition of Brian Petrini-Smith appealing the response of the Town of Natick Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Petrini-Smith requested: 1. Any police report filed by [an identified person] against [an identified person] between 2014 and present; 2. Any police report reported by [an identified person] against an [identified person] between 2014 and present; 3. Any police report filed for an OUI against an [identified person] between 2011 and present; and, 4. Any documents denoting an [identified person’s] booking or detainment. On August 17, 2021, the Department informed Mr. Petrini-Smith that the Department has no records responsive his Request Numbers 2, 3 and 4. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). The Department also informed Mr. Petrini-Smith that the release of records responsive to his Request Number 1, “is being denied under [G. L. c. c. 41, § 97D] of the Massachusetts Domestic Violence Law Enforcement Guidelines, specifically relating to the confidentiality of those reports.” Unsatisfied with the Department’s denial, Mr. Petrini-Smith petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his August 18, 2021 petition, Mr. Petrini- 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

Mary Carney SPR21/2090 Page 2 August 31, 2021 Smith asserts, “…there is only one charge filed in court for the perpetrator of the crime and two separate police reports for two separate reported crimes. Being this is not being treated as [domestic violence] this exemption does not apply.” 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). Exemption (a) The Department’s August 17th response indicates that the records responsive to Mr. Petrini-Smith are withheld due to protection from disclosure under G. L. c. 41, § 97D. 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

Mary Carney SPR21/2090 Page 3 August 31, 2021 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 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. Burden of specificity The Department denied Mr. Petrini-Smith’s Request Number 1 under G. L. c. 41, § 97D, without supporting its claim to withhold the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 ------------------------------- (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). In addition, the Department did not identify the records in its possession that it intends to withhold from disclosure. 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).

Mary Carney SPR21/2090 Page 4 August 31, 2021 I find that the Department has not met its burden of specificity in responding to Request Number 1. Conclusion Accordingly, the Department is ordered to provide Mr. Petrini-Smith with a response to the request, 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, /? A • • • • ~ 0. ~ ~~ · Rebecca S. Murray Supervisor of Records cc: Brian Petrini-Smith