Corey Kelleher v. Lowell, City of - Police Department (SPR 20241551)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 5, 2024 SPR24/1551 Jacqueline Cook Keeper of Records Lowell Police Department 50 Arcand Drive Lowell, MA 01852 Dear Ms. Cook: I have received the petition of Corey Kelleher appealing the response of the Lowell 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 May 9, 2024, Mr. Kelleher requested, “[a]ny, all incident in regards to [two identified individuals] or made by [an identified individual] from 12/1/22 - 5/9/2024.” On May 21, 2024, the Department provided one police report to Mr. Kelleher and stated the remaining responsive police reports were withheld under Exemption (a) of the Public Records Law. Unsatisfied with the Department’s response, Mr. Kelleher petitioned this office and this appeal, SPR24/1551, was opened as a result. While this appeal was pending, the Department provided a supplemental response on May 22, 2024. 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

Jacqueline Cook SPR24/1551 Page 2 June 5, 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 21st and May 22nd responses In its May 21, 2024 response, during an in-person visit to the Department, a representative of the Department provided Mr. Kelleher with a copy of police report responsive to his request, Report 23-8226. The Department also provided a list of four additional police reports that were withheld in their entirety pursuant to Exemption (a) of the Public Records Law, citing G. L. c. 41, § 97D and provided Mr. Kelleher with a physical copy of this statute. In its May 22, 2024 email response, the Department again asserted Exemption (a) to withhold the records in their entirety. Current Appeal In his appeal, Mr. Kelleher states, “I only received one report and I didn’t receive any other reports requested and I wasn’t provided a denial letter and when I was filling out my complaint [to the Department] this officer handed me two more papers mark page 3 & 4 [page 3 states Exemption A and page 4 has stars marking G. L. c. 41, § 97D].” 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

Jacqueline Cook SPR24/1551 Page 3 June 5, 2024 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 states 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 . . . G. L. c. 41, § 97D. In its May 22, 2024 response, the Department explains “[t]he…other case numbers listed are exempt under Exemption A. You received a copy of this statute yesterday for your records wherein it states all domestic reports are prohibited from Public Records.” The Department also provided a list of the withheld records with case number and date, as follows: [1] 2022-0018706(A) – 12/11/2022 [2] 2022-0018706(A) – 12/15/2022 [3] 2023-0001136(A) – 01/22/2023 [4] 2023-0001896(A) – 02/05/2023 In a telephone conversation between a staff attorney of the Public Records Division and the Department, a representative of the Department confirmed that the listed records are domestic violence reports where Mr. Kelleher is not listed as the victim. Based upon the Department’s responses, and as the records are 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”). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Kelleher 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).

Jacqueline Cook SPR24/1551 Page 4 June 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Corey Kelleher