Joseph Viglione v. Wilmington, Town of - Police Department (SPR 20232364)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2364 Susan M. O’Neil Senior Clerk Wilmington Police Department 1 Adelaide Street Wilmington, MA 01887 Dear Ms. O’Neil: I have received the petition of Joe Viglione appealing the response of the Wilmington 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 September 18, 2023, Mr. Viglione requested “any police reports regarding [two named individuals] in the past 30 days.” Prior appeal The requested records were the subject of a prior appeal. See SPR23/2229 Determination of the Supervisor of Records (September 28, 2023). In my September 28th determination, I found that the Department did not meet its burden to withhold responsive records under Exemptions (a) and (c) of the Public Records Law. On October 3, 2023, the Department responded and provided a further explanation for withholding responsive records pursuant to Exemptions (a) and (c). G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department’s response, Mr. Viglione petitioned this office and this appeal, SPR23/2364, 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) (written response must “identify 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

Susan M. O’Neil SPR23/2364 Page 2 October 17, 2023 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 October 3rd response In its October 3, 2023 response, the Department claims that it is withholding the arrest reports under the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, G. L. c. 66, § 10(B), and G.L. c. 41, § 97D, as they operate through Exemption (a), as well as Exemption (c) of the Public Records Law. The Department stated the following: Wilmington Police Department Records, Log Entry, 23-20267, Report, 23-1149- 0F and Report, 23-3181-AR are Domestic in nature and are not public record. Exemption (A): All reports of abuse perpetrated by family or household members, applies to personal information of an individual; the disclosure of which may constitute an unwarranted invasion of personal privacy, section 1 of chapter 209A. All communications between police officers and victims of such offenses or abuse shall not be public record and shall be maintained by the police department in a manner that shall assure their confidentiality, G.L. c. 41, § 97D. Exemption (A): G.L. c. 66 § 10B advises victim information shall not be public record. Exemption (A): G.L. c. 6 § 167 -178-B exempts records being released as a result of the initiation of criminal proceedings and Criminal Offender Records Information (C.O.R.I.). See paragraph four of my September 20, 2023, response attached, and note, Mr. McElroy, we discussed this on September 21, 2023, and October 2, 2023. There is an upcoming Show Cause Hearing at Woburn District Court on Wednesday, October 4, 2023, regarding the matter. At that time, Mr. Viglione may have a second means of access to the records he is requesting. Mr. Viglione may request records through the Woburn District Court, 30 Pleasant Street, Woburn, MA 01801 Exemption (C): . . . . The records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweighs the public interests in the disclosure of that information. In making that determination, the department has considered the following factors: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly

Susan M. O’Neil SPR23/2364 Page 3 October 17, 2023 personal nature; and (3) whether the same information is available from other sources: The requested records contain medical information of a specifically named individual. The privacy interests involved outweigh the public interests in the disclosure of that information. As a result, such information must be withheld under the law. . . . In camera inspection In order to facilitate a determination as to the applicability of the Exemptions (a) and (c) claims made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s 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. Mass. 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Susan M. O’Neil SPR23/2364 Page 4 October 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Joe Viglione