Kevin Rothstein v. Boston, City of - Police Department (SPR 20222147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2022 SPR22/2147 Shawn A. Williams, Esq. Director of Public Records Records Access Officer City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Kevin Rothstein, of WCVB-TV (CH 5), appealing the response of the Boston Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 19, 2022, Mr. Rothstein requested a specific police incident report. The Department responded on September 19, 2022. Unsatisfied with the Department’s response, Mr. Rothstein petitioned this office and this appeal, SPR22/2147, 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 agency or 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); 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. 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 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

Shawn A. Williams, Esq. SPR22/2147 Page 2 September 26, 2022 custodian must provide the responsive records. The Department’s September 19th response In its September 19, 2022 response, the Department advises that it is withholding the requested record pursuant to Exemption (a) of the Public Records Law and cited G. L. c. 41, § 97D. 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 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,

Shawn A. Williams, Esq. SPR22/2147 Page 3 September 26, 2022 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. In its response, the Department’s advised, “[a]ll records associated with [the] Incident report 142007087 are being withheld under the so-called statutory exemption to the public records law. The records which include incident reports, and as such, the Department is prohibited from releasing them by statute. The statute prohibits public disclosure of all records containing allegations of sexual assault or domestic violence. G. L. c. 41, § 97D; G. L. c. 41, § 98F; G. L. c. 209A, § 8; G. L. c. 4 §7(26)(a).” In his appeal petition, Mr. Rothstein contends: [B]y Boston police’s own description (relayed in a separate police report involving the same perpetrator), the incident involves an allegation of “sex for fee.” Sex for a fee is not included in the categories of offenses that G. L. c. 41, § 97D covers, which are, “rape and sexual assault or attempts to commit such offenses… (and) abuse perpetrated by family or household members…. In light of Mr. Rothstein’s claim, I find the Department has not met its burden to demonstrate how the records at issue are the type of reports contemplated by G. L. c. 41, § 97D. Further, the Department has not identified which specific records it is withholding, nor has it provided specific reasons for the applicability of this exemption as required by G. L. c. 66, § 10(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Rothstein with a response to his request 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.

Shawn A. Williams, Esq. SPR22/2147 Page 4 September 26, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Kevin Rothstein