Josh Hinds v. Stow, Town of - Police Department (SPR 20241413)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 22, 2024 SPR24/1413 Michael Sallese Chief of Police Stow Police Department 305 Great Road Stow, MA 01775 Dear Chief Sallese: I have received the petition of Josh Hinds appealing the response of the Stow 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 11, 2024, Mr. Hinds requested all records regarding the filing of a restraining order and queried, “[d]id [an identified individual] file the restraining order from Stow PD? If so, how can I obtain the original affidavit?” The Department provided responses on February 12, 2024 and February 23, 2024. Unsatisfied with the Department’s responses, Mr. Hinds petitioned this office and this appeal, SPR24/1413, 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

Chief Michael Sallese SPR24/1413 Page 2 May 22, 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 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. Hinds’ status as a party named in the requested record will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. The Department’s February 12th and 23rd Responses In its February 12, 2024 response, the Department stated, “[a]ll affidavits have been filed with the Concord Court and you can get a copy there…I have sent your Stow PD records request to the records department and will provide any records that are allowed by law within 10 days…” In its February 23, 2024 response, the Department cited Exemption (a) of the Public Records Law, and G. L. c. 41, § 97D in withholding some responsive records. Current appeal In his appeal, Mr. Hinds states, “I was denied access to my public records citing Exemption A, but I am defending myself against a fraudulent restraining order and need these records to know the details of the false complaints in order to properly show my case[.]” 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).

Chief Michael Sallese SPR24/1413 Page 3 May 22, 2024 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 In its February 23, 2024 response, the Department cited 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. . . G. L. c. 47, § 97D. Under Exemption (a) and G. L. c. 41, § 97D, the Department stated, “[w]ith respect to your request, the Department intends to withhold the following requested records: [1.] 24-1-AR [2.] 23-17298 [3.] 23-223-OF [4.] 23-17139 [5.] 23-19-RO [6.] 23-219-OF The Department further stated, “[t]he records requested contain information regarding domestic abuse and sexual assault information … as a result such information must be withheld/redacted under the law.” In a telephone call between the Department and a Public Records Division staff attorney, dated May 13, 2024, the Department confirmed that the records being withheld are reports involving domestic disturbances.

Chief Michael Sallese SPR24/1413 Page 4 May 22, 2024 Based on the Department’s response, and as the records are restricted from disclosure in their 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”). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Hinds 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Josh Hinds