J. Daniel Silverman, Esq. v. Somerville, City of - Police Department (SPR 20221900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2022 SPR22/1900 Lori L. Cook Records Clerk Somerville Police Department 220 Washington Street Somerville, MA 02143 Dear Ms. Cook: I have received the petition of Daniel Silverman, Esq. appealing the response of the Somerville Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 13, 2022, Attorney Silverman requested: Any and all reports referring to [an identified person with an identified date of birth] which occurred in your [City] between January 1, 2019 and June 13, 2022. Reports include, but are not limited to, incident reports, complaints, restraining orders, affidavits, statements, citations, and (past) investigations. In a June 14, 2022 response, the Department denied Attorney Silverman’s request in its entirety, asserting, “Massachusetts General Laws Chapter 41, § 97D, which only permits this type of police report to be released to authorized persons such as a designated victim and/or victim’s authorized representative.” As a result of the Department’s June 14th response, Attorney Silverman petitioned the Supervisor of Records, and this appeal was opened. In his August 16th petition, Attorney Silverman states, “…I submitted an identical request to the Wilmington Police Department on June 13, 2022. On June 23, 2022, the [Wilmington Police] released 180-pages fulfilling the request while simultaneously redacting personal information of an individual.” 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 agency or 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

Lori L. Cook SPR22/1900 Page 2 August 29, 2022 municipality 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). 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. 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. G. L. c. 41, § 97D G. L. c. 41, § 97D provides in relevant part:

Lori L. Cook SPR22/1900 Page 3 August 29, 2022 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; duty to segregate The Department’s June 14th response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department did not satisfy its burden in detailing how all the records in the Department’s possession regarding Attorney Silverman’s request are the type of reports and records contemplated under G. L. c. 41, § 97D as it operates through Exemption (a) of the Public Records Law. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Furthermore, the Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under G. L. c. 41, § 97D. 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). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the records it has in its possession that the Department withheld. The Department must clarify these matters.

Lori L. Cook SPR22/1900 Page 4 August 29, 2022 Conclusion Accordingly, the Department is ordered to provide Attorney Silverman with a response to his request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Daniel Silverman, Esq.