Paul J. Kernan v. Natick, Town of - Police Department (SPR 20231942)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 1, 2023 SPR23/1942 James G. Hicks Chief of Police Natick Police Department 20 East Central Street Natick, MA 01760-4631 Dear Chief Hicks: I have received the petition of Paul J. Kernan, of Access Investigations, Inc., appealing the response of the Natick 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 August 21, 2023, Mr. Kernan requested: …the following records in conjunction with an internal affairs investigation commissioned by the Medfield Police Department. We have a hearing schedule for August 28, 2023: Reports and Security camera footage associated with a Natick PD case – Natick Police Report ref: 23-298-AR [pertaining to an identified individual]. An incident that occurred at [an identified business]. On August 11, 2023, Mary Carney in the Department’s Records Division, asserted, “I am writing regarding your request for the records and/video from case 23-298-AR, involving [an identified individual] this is not for public dissemination, and is prohibited from release to anyone other than the victim, victim’s attorney and/or victim witness advocates. All of the information in your request is prohibited from public disclosure under Exemption A, a statutory exemption which prevents records release and can be withheld from public inspection.” On August 21st, the Department, through Chief Hicks, denied Mr. Kernan’s request in its entirety, stating, “[a]s I stated in my previous email, I cannot release this report in any form based on the fact that it is a domestic and state law will not allow it. It can be released to another law enforcement agency. Chief in [M]edfield has a copy of the report.” After receipt of the Department’s August 21st email response, Mr. Kernan emailed Chief Hicks, asserting: 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

Chief James G. Hicks SPR23/1942 Page 2 September 1, 2023 [r]espectfully, we have been hired by Medfield to act as the town’s internal affairs right now. We need a copy of the video for the termination hearing. Medfield’s Chief is not in charge of the investigation (we are) and has not furnished us with a copy of the report. The video was shown to Medfield’s Deputy Chief but no copy was provided. You said you can’t release the report or video to me in the manner in which it was requested. Lending me to believe you would release it to an agent of the [T]own of Medfield for internal affairs and labor purposes if we so indicated. Most Police Departments within the Commonwealth fully cooperate with these requests and ask for the public records request letter for their file and that’s why I was pre-emptive with that. As a result of the Department denying the records request, Mr. Kernan petitioned the Supervisor of Records, and this appeal was opened. Status of the requestor; reason for the 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Kernan’s interest in obtaining the report and video shall have no bearing on the public nature of the records. 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.

Chief James G. Hicks SPR23/1942 Page 3 September 1, 2023 Current appeal In his appeal, Mr. Kernan states: [p]lease open an appeal on this matter that has a substantial public and governmental interest outweighing the general [E]xemption [a], cited by Chief Hicks. Additionally, we offered Chief Hicks the option to redact the victim’s information on the report(s) or wherever necessary and it was declined. We obviously already know the names of the folks on the report and are aware of the nature of the incident where a public employee [an identified police officer] was charged with [an identified crime] and is facing disciplinary action. We do not plan on using the report and video in a nefarious way or public way, but rather in the course of governmental business for the Officer’s Disciplinary hearing acting as an agent of the Town of Medfield. For that reason, we ask that you expedite the appeal which is in the best interest of the public and the towns’ people of Medfield. The Department’s August 11th and 21st Responses In its August 11, 2023 response, the Department asserted, “…the records and/video from the case 23-298-AR, involving [an identified individual], this is not for public dissemination, and is prohibited from release to anyone other than the victim, victim’s attorney and/or victim witness advocates. All of the information in [Mr. Kernan’s] request is prohibited from public disclosure under Exemption [a], a statutory exemption which prevents records release and can be withheld from public inspection.” In its August 21st response, the Department indicated that the records pertain to a domestic matter. 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).

Chief James G. Hicks SPR23/1942 Page 4 September 1, 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. As the report is restricted from disclosure in its entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law regarding the report. See G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Security Camera footage Mr. Kernan also requested a copy of the security camera footage from the identified property location, and in the custody of the Department. As to this security camera recording, I find that the Department has not met its burden in withholding the video in its entirety under Exemption (a), whereas G. L. c. 41, § 97D pertains to reports. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. To the extent that the recording exists, I find the Department must provide it in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the recording from disclosure. G. L. c. 66, § 10(b). 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 is advised that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a).

Chief James G. Hicks SPR23/1942 Page 5 September 1, 2023 Conclusion Where the Department has met its burden to withhold the report in its entirety under G. L. c. 41, § 97D, as it operates through Exemption (a), I will consider this portion of Mr. Kernan’s appeal closed. However, the Department has not met its burden to withhold the security camera recording under Exemption (a) of the Public Records Law. The Department must clarify its exemption claim as indicated above. Accordingly, the Department is ordered to provide Mr. Kernan with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. 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: Paul J. Kernan