Eleonora Bianchi v. New Bedford, City of - Clerk's Office (SPR 20222897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2023 SPR22/2897 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford Solicitor’s Office 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Eleonora Bianchi, of The New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On September 7, 2022, Ms. Bianchi requested “[t]he total number of times [a named individual] called The New Bedford Police to report [a named individual]” and “the reasons why [a named individual] was reporting on [a named individual], and how many of the reports she made were false reports.” On October 19, 2022, the City responded. Unsatisfied with the City’s response, Ms. Bianchi petitioned this office and this appeal, SPR22/2897, 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. 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

Nicholas DeMarco, Esq. SPR22/2897 Page 2 January 4, 2023 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 City’s October 19th Response In its October 19, 2022 response, the City states that it has twelve documents responsive to the request. The City cites G. L. c. 41, § 97D to withhold one responsive document and G. L. c. 6, § 167 to withhold two responsive documents. The City provided the other nine responsive documents to Ms. Bianchi with redactions pursuant to Exemptions (a), (c), and (f). 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. Criminal Offender Record Information (CORI) The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings

Nicholas DeMarco, Esq. SPR22/2897 Page 3 January 4, 2023 conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Under Exemption (a), citing the Criminal Offender Record Information (CORI) Act, the City explains, “[f]or the remaining two documents, the [City] has withheld them pursuant to G.L. c. 6, § 167 (Criminal Offender Record Information) due to the fact that both records relate to the criminal history information of specific individuals.” G. L. c. 41, § 97D 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, 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

Nicholas DeMarco, Esq. SPR22/2897 Page 4 January 4, 2023 In its response, the City asserts: One of the records concerns a domestic occurrence between [a named individual] and a member of his household. Under G.L. c. 41, § 97D, “[a]ll report of …abuse perpetrated by family or household members…shall be maintained by the police department in a manner that shall assure their confidentiality…” As such, the [City] has withheld the document accordingly. Current Appeal In her appeal, Ms. Bianchi states, “[b]ut as [a named individual] was deported to Portugal in 2017 and his partner (mentioned in the [City’s] response) is deceased, I request that I be given access to the three remaining records.” In camera inspection In order to facilitate a determination as to the applicability of the City’s claims under Exemption (a) to withhold the responsive records from disclosure, the City must provide this office with un-redacted copies of the three responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Nicholas DeMarco, Esq. SPR22/2897 Page 5 January 4, 2023 Order Accordingly, the City is ordered to provide this office with un-redacted copies of the three responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi