Andrew S. Baer, Ph.D. v. Boston, City of - Police Department (SPR 20231509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2023 SPR23/1509; SPR23/1512 SPR23/1515; SPR23/1517 Shawn Williams, Esq. Director of Public Records City of Boston 1 City Hall Square, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petitions of Andrew S. Baer, appealing the responses of the Boston Police Department (Department) to requests for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2023, Mr. Baer requested various records regarding the murder investigation of four named individuals. On June 29, 2023, the Department responded, indicating that it is withholding all responsive records pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Mr. Baer petitioned this office and these appeals, SPR23/1509; SPR23/1512; SPR23/1515; SPR23/1517, were 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

Shawn Williams, Esq. SPR23/1509; SPR23/1512; SPR23/1515; Page 2 SPR23/1517 Jul 14, 2023 The Department’s June 29th responses In its June 29 2023 responses, the Department cites G. L. c. 265, § 24C, G. L. c. 41 § 97D, and G. L. c. 41 § 98F, as they operate through Exemption (a), to withhold the responsive records from disclosure. 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. In its June 29th responses, the Department stated the following: Your request is denied, as any responsive records are completely exempt from disclosure under statutes that serve to protect the privacy rights of victims of rape, sexual assault and domestic violence. G. L. c. 265, § 24C; G. L. c. 41 § 97D; G.L. c. 41 § 98F. These statutes operate pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7 (26) (a). The laws of the Commonwealth protect both the identity of a sexual assault victims, as well as the specifics of the report of a sexual assault, rape or domestic abuse. In addition, M.G.L. c. 41, § 97D provides that “all reports of rape and sexual assault or attempts to commit such offenses” are not public records. See M.G.L. c. 41, § 97D. Both statutes protect Boston Police Department records relating to sexual assault in their entirety, including any information contained in the records of the Crime Laboratory or Evidence

Shawn Williams, Esq. SPR23/1509; SPR23/1512; SPR23/1515; Page 3 SPR23/1517 Jul 14, 2023 Management. As such, any and all reports of sexual assault are not deemed public and are protected by the Department in a manner that assures their confidentiality, pursuant to M.G.L. Ch. 41, §97D and M.G. L. Ch. 265, §24. These records can only be released with a Court Order. The statutes state in relevant parts: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B1/2, 13B3/4, twenty-two, twenty-two A, 22B, 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four… G. L. c. 265, § 24C. 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. The Department also cites G. L. c. 41, § 98F, which provides in pertinent part: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said

Shawn Williams, Esq. SPR23/1509; SPR23/1512; SPR23/1515; Page 4 SPR23/1517 Jul 14, 2023 person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. G. L. c. 41, § 98F. Based on the Department’s response, it is unclear how the requested records falls within the type of records contemplated in G. L. c. 265, § 24C, G. L. c. 41 § 97D, and G.L. c. 41 § 98F. The Department merely cites G. L. c. 265, § 24C, G. L. c. 41 § 97D, and G.L. c. 41 § 98F, without any further explanation as to the statutes’ applicability to the responsive record. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Further, it is unclear what records were withheld from disclosure. 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); see also 950 C.M.R. 32.06(3)(c)(4). It is additionally uncertain why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Baer with a response(s) to his requests, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Baer may appeal the substantive nature of the Department’s response(s) within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrew S. Baer

Shawn Williams, Esq. SPR23/1509; SPR23/1512; SPR23/1515; Page 5 SPR23/1517 Jul 14, 2023