Joseph Viglione v. Medford, City of - Police Department (SPR 20222772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2022 SPR22/2772 Lieutenant Joseph Casey Professional Services Medford Police Department 100 Main Street Medford, MA 02155 Dear Lieutenant Casey: I have received the petition of Joseph Viglione appealing the response of the Medford 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 November 29, 2022, Mr. Viglione requested: [1] Any police report regarding a firefighter or police officer in [the City] who may have assaulted [an individual] who may have been assaulted on or around 11/28/22; [2] Any correspondence between [the City Hall] and any entity regarding [an] alleged assault; and [3] Any police report(s) from January 1, 2022 regarding members of the [C]ity [C]ouncil, [S]chool [C]ommittee or employee of the [City government] (DPW, etc.). On December 1, 2022, the Department provided Mr. Viglione with a response to his request. Unsatisfied with the Department’s response, Mr. Viglione petitioned this office, and this appeal was opened. 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). 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

Lieutenant Joseph W. Casey SPR22/2772 Page 2 December 15, 2022 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. The Department’s December 1st Response Items 1 and 2 In its December 1, 2022 response, and with respect to Items 1 and 2, the Department states “…any records if they do exist are exempt from disclosure . . . per Exemption (a), . . . as a police report in regards to domestic violence[,]” and cites 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, 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

Lieutenant Joseph W. Casey SPR22/2772 Page 3 December 15, 2022 access to the listed individuals or entities. In its response, the Department referenced the statute, G. L. c. 41, § 97D, which 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. Based on the Department’s response, I find it has not met its burden to withhold records responsive to Items 1 and 2 from disclosure. The Department has not identified the records in its possession that may be responsive to the request. In particular, the Department provided a vague response to Item 2 by not specifically stating whether the Department has any responsive records. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. 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 ... “); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must clarify its response to Items 1 and 2. Item 3 With respect to Item 3, the Department informed Mr. Viglione that “[Item 3] is unable to be produced due to vagueness.” The Department asserts, “[t]he present request does not specifically identify the individuals of who the requested information (police reports) pertains to … The Department does not maintain lists of names of individuals who are employed or elected within the [C]ity government, as such the requested records [cannot] be identified.” Mr. Viglione is advised, that he may wish to clarify his request and provide the Department with the specific information it needs to search and compile the specific records Mr. Viglione seeks. Mr. Viglione has not in his request, nor his petition to this office, provided sufficient particularity pertaining to specific City government individuals; in order for the Department to identify the documents he seeks. Therefore, this office encourages Mr. Viglione and the Department to continue communicating to satisfy the request once Mr. Viglione provides further information regarding his request.

Lieutenant Joseph W. Casey SPR22/2772 Page 4 December 15, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Viglione 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joseph Viglione