Anastasia E. Lennon v. New Bedford, City of - Office of The City Solicitor (SPR 20240201)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0201 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Anastasia E. Lennon, of the New Bedford Light, appealing the response of the City of New Bedford (City) to a request for public records. On January 8, 2024, Ms. Lennon requested, “... any and all written records held by NBPD, including emails, that regard [an identified individual] a female resident of Dartmouth, Mass. The date range of my request is Jan. 1, 2020 to Jan. 8, 2024.” The City responded on January 23, 2024. Unsatisfied with the City’s response, Ms. Lennon petitioned this office and this appeal, SPR24/0201, 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(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. Att’y 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

Nicholas DeMarco, Esq. SPR24/0201 Page 2 February 6, 2024 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 City’s January 23rd response In its January 23 2024 response, the City stated that the [New Bedford Police] Department has identified a record in its possession posing to be responsive to your request. However, the Department is withholding this record pursuant to G.L. c. 41, § 97D, as made applicable by 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the City cited, G. L. c. 41, § 97D indicating that the records are exempt from disclosure. 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

Nicholas DeMarco, Esq. SPR24/0201 Page 3 February 6, 2024 maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. In its response, the City asserted, “[t]he actions that are the subject of the above referenced record are the kind that fall under G.L c. 41, § 97D. Failure of the Department to adhere to this statute ‘. . . shall be punished by imprisonment for not more than 1 year or by a fine of not more than $1,000, or both such fine and imprisonment.’ Id. Due to the fact that you currently do not appear to fall under one of the types of authorized individuals listed under G.L. c. 41, § 97D, the Department is obligated to withhold the records in question. As such, the Department has done so.” Based upon the City’s response, it is unclear what records the City possesses that it is withholding from disclosure, nor how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). 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 Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). As a result, I find that the City did not meet its burden of specificity in claiming Exemption (a) to withhold the requested records in their entirety. The City must clarify. Conclusion Accordingly, the City is ordered to provide a response to Ms. Lennon, provided 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. Ms. Lennon may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anastasia E. Lennon