Justin Pascarelli v. Dennis, Town of - Police Department (SPR 20241126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 30, 2024 SPR24/1126 Lieutenant Thomas Murray Commander of Support Services Dennis Police Department 90 Bob Crowell Road South Dennis, MA 02660 Dear Lieutenant Murray: I have received the petition of Justin Pascarelli appealing the response of the Dennis 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 February 15, 2024, Mr. Pascarelli requested, “...all records pertaining to criminal charges brought against [an identified individual] with complaint dates 11/27/1995, and 8/28/1995.” Prior Appeal This request was the subject of a prior appeal. See SPR24/0843 Determination of the Supervisor of Records (April 2, 2024). In my April 2nd determination, I found that it was unclear what types of records the Department withheld from disclosure, and how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). Subsequently, the Department responded on April 15, 2024. Unsatisfied with the Department’s response, Mr. Pascarelli petitioned this office and this appeal, SPR24/1126, 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). 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 Thomas Murray SPR24/1126 Page 2 April 30, 2024 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 April 15th Response In its April 15, 2024 response, the Department stated that it “has two confidential police reports protected by Section 97D, as outlined below, dated 8/28/95 and 11/28/95 responsive to this request.” The Department cited Exemption (a) to withhold the requested records. 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 Department stated, “[a]fter a careful and individualized review of the confidential police records, the records contain confidential information protected by the statutory provision, and redaction is not possible given that the records are exempt from disclosure under state law. . . .Massachusetts G. L. c. 41, § 97D specifically excludes from public records certain types of information and requires such information to be maintained in a

Lieutenant Thomas Murray SPR24/1126 Page 3 April 30, 2024 confidential manner. Any police report that contains information explicitly protected by G. L. c. 41, § 97D, cannot be disclosed, without the statutorily required authorization.” 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 maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the two police reports pursuant to Exemption (a) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the recording, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Lieutenant Thomas Murray SPR24/1126 Page 4 April 30, 2024 Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Justin Pascarelli