Todd Wallack v. Weymouth, Town of - Police Department (SPR 20241744)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 5, 2024 SPR24/1744 Erin Metcalf Police Captain Records Access Officer Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Captain Metcalf: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Weymouth 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 June 20, 2024, Mr. Wallack requested the following: [1.] A docket number referenced in a June 11, 2024 letter from [a named individual] to [Mr. Wallack] [2.] An application for a criminal complaint referenced in a June 11, 2024 letter from [a named individual] to [Mr. Wallack.] The Department provided a response on June 21, 2024. Unsatisfied with the Department’s response, Mr. Wallack petitioned this office and this appeal, SPR24/1744, 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, § l0A(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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Captain Erin Metcalf SPR24/1744 Page 2 July 5, 2024 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. 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 June 21st Response In its June 21, 2024 response, the Department cited Exemption (a) of the Public Records Law to withhold the responsive records. Current appeal In his appeal, Mr. Wallack states, “[t]he SJC has made it clear that court documents, including docket numbers, are normally considered public records subject to the release.” 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Captain Erin Metcalf SPR24/1744 Page 3 July 5, 2024 Under Exemption (a), the Department stated, “[a named individual’s] letter was in response to [Mr. Wallack’s] previous public records request seeking any 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 January 1, 2018. This request is denied… based on Exemption A…” Based on the Department’s June 21st response it is unclear what statute the Department is claiming to withhold responsive records. The Department is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). Consequently, the Department must state the statute that permits it to withhold the records from disclosure. 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack