Todd Wallack v. Fall River, City of - Police Department (SPR 20241391)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2024 SPR24/1391 Kathleen Medeiros Fall River Police Department Records Unit 685 Pleasant Street Fall River, MA 02721 Dear Ms. Medeiros: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Fall River Police Department (Department) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On May 3, 2024, Mr. Wallack requested, “[a]ny complaints filed with the department over the way the department or an individual officer handled a case or report involving sexual assault, including indecent assault, rape and attempted rape since Jan. 1, 2018.” On May 6, 2024, the Department responded. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/1391, 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(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. 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

Kathleen Medeiros SPR24/1391 Page 2 May 21, 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 Department’s May 6th Response In its May 6, 2024 response, the Department stated, “[the Department] has reviewed your request and has determined that the records requested are exempt from disclosure under public records law for the following reasons: Exemption (a) – The Statutory Exemption (a) applies to records that are: specifically or by necessary implication exempted from disclosure by statute. A government entity may use the statutory exemption as a basis for withholding requested materials where the exempting statute expressly states or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted.” 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. The Department’s May 6th response did not contain the specificity required in a denial of access to public records. Instead, the Department’s response merely states that “. . . the records requested are exempt from disclosure under public records law . . . Exemption (a). . .” without any further explanation as to the exemption’s applicability to the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of

Kathleen Medeiros SPR24/1391 Page 3 May 21, 2024 the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 10(b)(iv). Please be advised that for Exemption (a) to apply, the Department must identify a statute and explain how said statute either expressly state that the withheld records are not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, it remains unclear how Exemption (a) applies to withhold the requested records from disclosure. The Department must clarify this matter. Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (a). Conclusion Accordingly, the Department is ordered to provide Mr. Wallack 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. Mr. Wallack 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: Todd Wallack