Todd Wallack v. Brockton, City of - Police Department (SPR 20241761)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 27, 2024 SPR24/1761 Sergeant Brenda Perez Brockton Police Department 7 Commercial Street Brockton, MA 02302 Dear Sergeant Brenda Perez: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Brockton 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 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.” The Department responded on June 12, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/1761, 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. 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. If there are any fees associated with a response a written, good faith estimate must be 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

Sergeant Brenda Perez SPR24/1761 Page 2 June 27, 2024 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 12th Response In its June 12, 2024 response, the Department cited G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law to withhold the requested records. Current appeal In his appeal, Mr. Wallack stated, “I wish to appeal a partial denial by the Brockton Police Department for copies of two internal affairs complaints. The agency argues internal affairs complaints related to sexual assaults are entirely exempt from the public records law under MGL 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, 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 cited G. L. c. 41, § 97D, which states in pertinent part as follows: All reports of rape and sexual assault or attempts to commit such offenses,

Sergeant Brenda Perez SPR24/1761 Page 3 June 27, 2024 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 response, the Department stated, “M. G. L. c. 41, § 97D allows the withholding of materials related to sexual assaults. However, the Department believes in transparency, especially with regard to complaints received about sensitive matters. We have created a .pdf file to inform you of when we received the complaint, the officer the complaint is about, when the resulting decision was made, and if any disciplinary action was taken.” Based upon the Department’s response, it is unclear how the requested records fall within the type of records contemplated in G. L. c. 41 § 97D. The Department merely cites G. L. c. 41, § 97D, without any further explanation as to the statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Further, it is unclear why the records may be withheld in their entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. 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 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