Jenna Federer v. Massachusetts Department of State Police (SPR 20233013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 29, 2023 SPR23/3013 Allison Mondello Records Access Officer Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Jenna Federer appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2023, Ms. Federer requested a copy of the “report from Plymouth State police office conducted by Officer Norcross regarding an incident at Camp Squanto in the Myles Standish Forest on the night of July 21st.” Previous Appeal This request was the subject of a previous appeal. See SPR23/2796 Determination of the Supervisor of Records (November 27, 2023). In my November 27th determination, I ordered the Department to provide Ms. Federer with a response to her request. Subsequently, the Department responded on December 12, 2023, citing Exemption (a) for withholding responsive records. Unsatisfied with the Department’s response, Ms. Federer further appealed, and this case was opened as a result. Status of the Requestor 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, Ms. Federer’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Allison Mondello SPR23/3013 Page 2 December 29, 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. The Department’s December 12th Response In its December 12, 2023 response, the Department cites Exemption (a) of the Public Records Law and G. L. c. 41, § 97D for withholding “Case 2023‐113‐446.” See G. L. c. 4, § 7(26)(a). 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

Allison Mondello SPR23/3013 Page 3 December 29, 2023 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 December 12th response, the Department cites G. L. c. 41, § 97D, which provides in pertinent part as follows: 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 G. L. c. 41, § 97D. Under Exemption (a) and G. L. c. 41, § 97D, the Department argues that “the record(s) responsive to [the] request fall within this exemption because releasing the requested information would violate M.G.L. c. 41, § 97D, the confidentiality of reports of rape, sexual assault and domestic violence statute.” The Department is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. 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”). Based on the Department’s December 12th response, it is unclear how the responsive records constitute the type of records contemplated under G. L. c. 41, § 97D. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Federer with a response to her 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

Allison Mondello SPR23/3013 Page 4 December 29, 2023 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: Jenna Federer