Andrew S. Baer, Ph.D. v. Boston, City of - Police Department (SPR 20231513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2023 SPR23/1510; SPR23/1511; SPR23/1513 Shawn A. Williams, Esq. Director of Public Records Record Access Officer City of Boston One City Hall Square Boston, MA 02201 Dear Attorney Williams: I have received the petitions of Andrew Baer appealing the responses of the Boston Police Department (Department) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2022, Mr. Baer requested, “[a]ny and all documents related to the disappearance, search, discover, and murder of [named individuals].” The Department provided a response on June 29, 2023. Unsatisfied with the Department’s response, Mr. Baer petitioned this office and these appeals, SPR23/1510, SPR23/1511, and SPR23/1513 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(d)(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). 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. SPR23/1510; SPR23/1511; Page 2 SPR23/1513 July 17, 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 Department’s June 29th response In its June 29, 2023 response, the Department cites G. L. c. 265, § 24C and G. L. c. 41, § 97D, as they operate though 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. The Department cites G. L. c. 265, § 24C and G. L. c. 41, § 97D, and states that “any responsive records are completely exempt from disclosure under statutes that serve to protect the privacy rights of victims of rape and sexual assault. . . .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 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…”

Shawn A. Williams, Esq. SPR23/1510; SPR23/1511; Page 3 SPR23/1513 July 17, 2023 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. Based on the Department’s response, it is unclear how the requested records fall within the type of records contemplated in G. L. c. 41 § 97D. The Department merely cites G. L. c. 265, § 24C and G. L. c. 41, § 97D, without any further explanation as to the statutes’ applicability to the responsive records. 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 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. Additionally, it is uncertain from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a). See G. L. c. 66, § 10(b)(iv) (a 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”).

Shawn A. Williams, Esq. SPR23/1510; SPR23/1511; Page 4 SPR23/1513 July 17, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Baer with a response to the request, 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 within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Andrew Baer