Crystal M. Cubellis v. Bourne, Town of - Police Department (SPR 20213298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3298 Debi McCarthy Records Access Officer Bourne Police Department 175 Main Street Bourne, MA 02532 Dear Ms. McCarthy: I have received the petition of Crystal Cubellis appealing the response of the Bourne Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 9, 2021, Ms. Cubellis requested, “[a] police report for a [certain] domestic altercation.” The Department provided a response on December 9, 2021. Unsatisfied with the response, Ms. Cubellis petitioned this office and this appeal, SPR21/3298, 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) (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). 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

Debi McCarthy SPR21/3298 Page 2 January 3, 2022 Department’s December 9th response In its December 9, 2021 response, the Department denied access to responsive records under Exemption (a) of the 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 Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. On December 21, 2021, the Department provided a supplemental response. The Department claims that G. L. c. 41, § 97D, applies to withhold the responsive records. G. L. c. 41, § 97D provides in pertinent 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. G. L. c. 41, § 97D.

Debi McCarthy SPR21/3298 Page 3 January 3, 2022 As the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Cubellis is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, .~/)// - . . - ~. -I - ' ' -·. . ··. . Rebecca S. Murray Supervisor of Records cc: Crystal Cubellis