Joseph Viglione v. Medford, City of - Police Department (SPR 20222880)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2022 SPR22/2880 Lieutenant Joseph Casey 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.). Prior Appeal On December 1, 2022, the Department provided Mr. Viglione with a response to his November 29th request. 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. Unsatisfied with the Department’s response, Mr. Viglione petitioned this office, and the prior appeal was opened. See SPR22/2772 Determination of the Supervisor of Records (Supervisor) (December 15, 2022). In my December 15th determination, I found that the Department did not meet its burden of specificity in claiming Exemption (a) and G. L. c. 41, § 97D to withhold any records responsive to Mr. Viglione’s Requests 1 and 2. I also found that the 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 Casey SPR22/2880 Page 2 December 29, 2022 Department did not identify the records in its possession that may be responsive to Mr. Viglione’s request. On December 15th, the Department provided a response to the Supervisor’s December 15th determination. As a result of the Department’s response, Mr. Viglione petitioned the Supervisor, and the current 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). 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. Current Appeal On December 15th, the Department provided Mr. Viglione with a response, asserting: In regards to #1 and #2 Mr. Viglione is requesting records pertaining to an alleged assault by a Medford Police Officer or a Firefighter upon the individuals’ wife. Mr. Viglione attributes this information to a letter he received on or about 11/28/22. I am unable to confirm or deny the existence of the record as Mr. Viglione has not identified specific information such as the time and date of the alleged assault, or the names of the individuals involved in the alleged assault. Furthermore, if Mr. Viglione has such information the record would be exempt per Exemption [a], in that the record is exempted [from] disclosure by statute. The nature of the record (if it does exist) is of an individual (police officer or firefighter) who had allegedly assaulted his wife, as such it is an incident in relation to domestic violence which is exempted as a public record.

Lieutenant Joseph Casey SPR22/2880 Page 3 December 29, 2022 The Department continues to claim G. L. c. 41, § 97D as it operates through Exemption (a) to withhold any records responsive to Mr. Viglione’s Requests 1 and 2. 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. In its December 15th 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 December 15th 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

Lieutenant Joseph Casey SPR22/2880 Page 4 December 29, 2022 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. Per the December 15th determination, the Department is ordered to clarify its response to Mr. Viglione’s Items 1 and 2. Particularly, it remains unclear whether the Department has records responsive to the requests. In addition, the Department did not identify records responsive to Mr. Viglione’s Item 2. The Department has also claimed that it may withhold any communications between City Hall and the Department under G. L. c. 41, § 97D; however, this statute does not protect such communications. G. L. c. 41, § 97D protects, “…communications between police officers and victims of such offenses or abuse…” Therefore, the Department did not meet its burden of specificity in withholding any records responsive to Mr. Viglione’s request. Item 3 With respect to Item 3, in its December 1, 2022 response, 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.” In his December 16th petition for the current appeal, Mr. Viglione asserts regarding Item 3, “I don’t think the request is vague at all… [t]hus, I believe I have sufficiently responded to any question about [Item] 3.” Regarding Mr. Viglione’s Item 3, he was advised by the Supervisor to provide specific information relative to the individuals who are City Council members, City School Committee members, City employees including DPW and other department employees of the City’s government. Mr. Viglione is again advised, that he may wish to provide the Department with the needed information to enable the Department to conduct a search for the responsive records, if any. Once Mr. Viglione provides further information regarding his request, the Department may proceed to search for any responsive records.

Lieutenant Joseph Casey SPR22/2880 Page 5 December 29, 2022 Conclusion Accordingly, the Department is ordered to provide Mr. Viglione with a response to Items 1 and 2 of his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. Mr. Viglione may wish to provide the Department with additional information regarding Item 3. 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