Michael Hochman v. Middleborough, Town of - Police Department (SPR 20240833)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2024 SPR24/0833 Amy Dowler Supervisor of Records Middleborough Police Department 350 Wood Street Middleborough, MA 02346 Dear Ms. Dowler: I have received the petition of Michael Hochman, Esq., appealing the response of the Middleborough 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 March 5, 2024, Attorney Hochman requested the incident report for an incident involving [two identified individuals] which was determined to have taken place on October 21, 2023. The Department provided a response on March 15, 2024. Unsatisfied with the Department’s response, Attorney Hochman petitioned this office and this appeal, SPR24/0833, 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 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. 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

Amy Dowler SPR24/0833 Page 2 April 2, 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. Status of Requestor In his appeal petition, Attorney Hochman stated, “[b]eing the father and former spouse of the household members, Mr. Miller is already aware of the respective medical records, dates of birth, social security numbers, and other such identifying information...” 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, Mr. Miller’s status as a parent will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. Current Appeal In his March 19, 2024 appeal petition, Attorney Hochman stated: …my client has substantial concerns regarding the child’s safety, and he requires a full and unredacted copy of the report to take the appropriate legal actions to keep his child safe. Additional grounds for denial of the record request reference the inclusion of personnel and medical information being present in the report … The Department’s March 15th Response In its March 15, 2024 response, the Department cited Exemption (a), and specifically G. L. c. 41, § 97D and Exemption (c) of the Public Records Law in support of withholding the requested record. 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

Amy Dowler SPR24/0833 Page 3 April 2, 2024 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. G. L. c. 41, § 97D provides 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; 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. . . G. L. c. 41, § 97D. In its March 15, 2024 response, under Exemption (a) and G. L. c. 41, § 97D, the Department stated, “[w]ith respect to your request, please be advised that the Middleborough Police Department is withholding the requested record due to the nature of the incident, a domestic disturbance, as well as the result of the incident, mental health services and hospitalization.” Based on the Department’s response, and as the record is restricted from disclosure in its entirety by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Where I find that the Department may permissibly withhold the requested record under Exemption (a) of the Public Records Law, I decline to opine on the applicability of the Department’s Exemption (c) claim supporting non-disclosure.

Amy Dowler SPR24/0833 Page 4 April 2, 2024 Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Hochman is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Michael Hochman, Esq.