Laura H. Ortiz v. Newburyport, City of - Police Department (SPR 20240559)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2024 SPR24/0559 Richard J. Siemasko, Esq. Senior Lieutenant Newburyport Police Department 4 Green Street Newburyport, MA 01950 Dear Lieutenant Siemasko: I have received the petition of Laura Ortiz appealing the response of the Newburyport 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 December 13, 2023, Ms. Ortiz requested the following: A copy of all responsive records, that your Police Department produced to [a named individual] in 2015 for his public records request for “all internal affairs investigations regarding a specified individual” and including any custodial index that you may have produced then to the requester after he appealed SPR15/059 and also SPR15/470. Previous Appeal This request was the subject of a previous appeal. See SPR24/0214 Determination of the Supervisor of Records (February 5, 2024). In my February 5th determination, I found that the Department did not cite any exemptions in support of its redactions to the responsive records. Subsequently, the Department responded on February 16, 2024, citing Exemption (a) of the Public Records Law and G. L. c. 41, § 97D for redacting the responsive records. Unsatisfied with the Department’s response, Ms. Ortiz further appealed, and this case 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, 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

Lieutenant Richard J. Siemasko SPR24/0559 Page 2 March 7, 2024 § 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. 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 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 16th Response In its previous responses, the Department provided numerous responsive records in redacted form. In its February 16, 2024 response, the Department cites Exemption (a) of the Public Records Law and G. L. c. 41, § 97D for redacting the records. 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Lieutenant Richard J. Siemasko SPR24/0559 Page 3 March 7, 2024 G. L. c. 41, § 97D In its February 16th response, the Department cites G. L. c. 41, § 97D, which 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; 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. In its February 16th response, under G. L. c. 41, § 97D, the Department argues that “because this was a sex crime [the Department] will not be releasing victim or civilian witnesses names or information. It’s unlawful to release that information in this type of investigation.” Based on the Department’s February 16th response, and the redacted versions of the records provided by the Department, the responsive records appear to constitute the type of record contemplated in the statute cited above. Consequently, I find the Department has met its burden to redact the names and identifying information of the victim. However, based on the redacted records provided by the Department, it appears that the names and identifying information of police officers have also been redacted. In this case, it is unclear how the names and identifying information of police officers fall within the type of information contemplated in G. L. c. 41, § 97D. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz 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.

Lieutenant Richard J. Siemasko SPR24/0559 Page 4 March 7, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz