Irvin J. Rakhlin v. Acton, Town of - Police Department (SPR 20213313)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 3, 2022 SPR21/3313 Rebecca LeBlanc Records Clerk Acton Police Department 371 Main St. Acton, MA 01720 Dear Ms. LeBlanc: I have received the petition of Irvin J. Rakhlin, Esq. appealing the response of the Acton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 17, 2021, Attorney Rakhlin requested a certain police report. Previous appeal This request was the subject of previous appeal. See SPR21/3023 Determination of the Supervisor of Records (November 18, 2021). The Department provided a supplemental response on November 17, 2021. Unsatisfied with the Department’s response, Attorney Rakhlin petitioned this office and this appeal, SPR21/3313, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Rebecca LeBlanc SPR21/3313 Page 2 January 3, 2022 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 November 17th Response In its November 17, 2021 response, the Department cited “[u]nder exemption A: (G. L. c. 41, § 97D provides that these records, along with 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. However, this statute also lists groups of people and entities that may access these records, including victims and their attorneys, victim-witness advocates, and law enforcement).” 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

Rebecca LeBlanc SPR21/3313 Page 3 January 3, 2022 confidentiality . . . G. L. c. 41, § 97D. Attorney Rakhlin stated in his appeal to this office that the Department “previously indicated in writing that [the Department] would release the report to the Concord Clerk's office upon request, and without any explanation has reversed [its] position.” The Department provided a supplemental response on December 21, 2021 explaining it “never stated the court would give [Attorney Rakhlin] a copy, but [Attorney Rakhlin] could request there.” As the records are restricted from public 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 Attorney Rakhlin 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, Rebecca S. Murray Supervisor of Records cc: Irvin J. Rakhlin, Esq.