Hongnian Guo v. Brookline, Town of - Police Department (SPR 20231645)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2023 SPR23/1645 Amanda Williams Records Clerk Brookline Police Department Public Safety Building 350 Washington Street Brookline, MA 02445 Dear Ms. Williams: I have received the petition of Hongnian Guo appealing the response of the Brookline 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 July 3, 2023, Mr. Guo requested: [1] [r]ecords for initiation of [a restraining order] on January 28, 2020; [2] School DCF [r]eport on [a particular home]; [3] [Department] Investigation Report [at a particular home]; and, [4] [Restraining Order] violation [r]eports since 2020 to July 2023. On July 17, 2023, the Department provided a response, denying access to the responsive records under G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Guo petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Guo’s purpose in making the request has no bearing on the public status of any existing responsive records. 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

Amanda Williams SPR23/1645 Page 2 July 26, 2023 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). The Department’s July 17th response In its July 17, 2023 response, the Department asserts, “…the [Department] is unable to fulfill your request for records due to the nature of the report(s). This incident falls under exemption of the Public Records Law MGL Chapter 41, [§] 97D, all reports of rape and sexual assault or attempts to commit such offense, 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 confidentially … Such reports are not considered public records and will only be released to the victim(s) or legal advocate/representation of the victim(s) with their consent as outlined in the exemption.” 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).

Amanda Williams SPR23/1645 Page 3 July 26, 2023 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. G. L. c. 41, § 97D 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. Current appeal In his petition, Mr. Guo indicates, “I … am writing you this letter to ask for help to release all the police reports about [an identified person’s] cases investigated [by the Department]…” In an email on July 24, 2023, Mr. Guo again informed this office that he has a pending litigation matter in the Norfolk Probate and Family Court, Docket No. NO20D0272DR. He is seeking the domestic violence report that was withheld by the Brookline Police. It is my understanding from Mr. Guo’s July 24th email, that he is in possession of the other requested records. In a July 26th telephone conversation with an attorney in the Public Records Division, the Department informed this office that the records withheld are a restraining order with a supplemental police report, including the victim’s statements to the police officers in the Department. Where Mr. Guo is seeking the domestic violence report, I find that the report is of the type contemplated by the legislature to be confidential. See G. L. c. 41, § 97D. Conclusion In light of the above, I will consider this administrative appeal closed. If Mr. Guo is not satisfied with the outcome of this administrative appeal, this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 § 10(b) (pursuing administrative appeal

Amanda Williams SPR23/1645 Page 4 July 26, 2023 does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Hongnian Guo