Blue POV v. Leominster, City of - Police Department (SPR 20240556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2024 SPR24/0556 Sergeant Matthew R. Fallon Records Access Officer Leominster Police Department 29 Church Street Leominster, MA 01453 Dear Sergeant Fallon: I have received the petition of BluePOV (“requestor”) appealing the response of the Leominster 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 January 30, 2024, the requestor sought, “all bodycam footage for the arrest of [an identified individual] arrested on 06/05/2023.” Previous Appeal The requested record was the subject of a previous appeal. See SPR 24/0322 Determination of the Supervisor of Records (February 16, 2024). In my February 16th determination, I learned the Department intended to provide a supplemental response, and ordered the Department to provide such response. Unsatisfied with the response, the requestor petitioned this office and this appeal, SPR24/0556, 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. See G. L. c. 66, § 10(b)(iv); 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). To meet the specificity requirement a 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

Sergeant Matthew R. Fallon SPR24/0556 Page 2 March 6, 2024 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. 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 Department’s February 22nd Response In its February 22, 2024 response, the Department stated that the record was withheld pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. Current Appeal In their appeal petition, the requestor contends that: [The Department] claimed they could not release any of the BWC footage of an incident, where the charges are ‘assault w/dangerous weapon’. They claimed that this was a domestic violence incident and they are “prohibited” from releasing all footage under M.G.L. Ch. 4 Sec. 7. My argument is that the charges do not reflect the claims of domestic violence, and if this was a domestic violence incident that the footage in its entirety would not be exempt… I believe that the withholding of the BWC in its entirety is unlawful and not covered under any 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). 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.”

Sergeant Matthew R. Fallon SPR24/0556 Page 3 March 6, 2024 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 Department stated, “... [the Department is] prohibited from releasing this bodycam video to you in accordance with Exemption A of G.L. chapter 4 sec. 7, because this was a domestic violence incident.” The Department further explained, “[t]he statu[t]e that prohibits disclosure of this body worn camera footage is MGL. ch. 41 sec. 97D. Please be advised that the victim for this arrest (23-24635-AR) is the suspect’s son. The suspect and her son lived together at the time of the incident.” G. L. c. 41 § 97D states in relevant 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. Based on the Department’s response, in conjunction with the requestor’s claim, it is unclear how the requested bodycam record is restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide the requestor with a response to the request, 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. The requestor may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: BluePOV