Megan Hamilton-McKeon v. Mattapoisett, Town of - Police Department (SPR 20241798)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2024 SPR24/1798 Jessica DesJardins Executive Assistant to the Chief of Police Mattapoisett Police Department 64 County Road P.O. Box 436 Mattapoisett, MA 02739-0436 Dear Ms. DesJardins: I have received the petition of Megan Hamilton-McKeon appealing the response of the Mattapoisett 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 3, 2024, Ms. Hamilton-McKeon requested, “…my police record from the Mattapoisett Police Department...” Previous Appeal This request was the subject of a previous appeal. See SPR24/0397 Determination of the Supervisor of Records (February 20, 2024). In my February 20th determination, I found that the Department had not satisfied its burden in responding to Ms. Hamilton-McKeon’s request. Subsequently, the Department responded on April 17, 2024. Unsatisfied with the Department’s response, Ms. Hamilton-McKeon petitioned this office, and this appeal, SPR24/1798, 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. 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

Jessica DesJardins SPR24/1798 Page 2 July 3, 2024 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 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 April 17th Response In its April 17, 2024 response, the Department states that it “is withholding the requested report” under G. L. c. 119, § 60A, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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. In its response, the Department cites G. L. c. 119, § 60A, which provides in pertinent part as follows: The records of a youthful offender proceeding conducted pursuant to an

Jessica DesJardins SPR24/1798 Page 3 July 3, 2024 indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119, § 60A. Under the statute cited above, the Department argues the following: The Mattapoisett Police Department submits that it has in its possession the requested report. The requested report names a juvenile suspect for an alleged crime. The Mattapoisett Police Department however is withholding the requested report per G.L. c. 119, § 60A, and that the Legislature has taken great care to protect the privacy, health and welfare of minors in the Commonwealth. See G.L. c. 51, § 4 (street list); G.L. c. 71, § 34D (student records); and G.L. c. 119, § 51F (Department of Children and Family Records). No distinction is made between law enforcement records and court records. Juvenile records include records maintained by the court as well as probation records. Commonwealth v. Gavin G., 772 N.E.2d 1067, 1069 (Mass. 2002). Based on the Department’s April 17th response, it is unclear how the responsive record is the type contemplated under G. L. c. 119, § 60A. Specifically, it is unclear how the withheld report constitutes a record in a case “of delinquency arising under sections fifty-two to fifty- nine,” as required by the statute. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Hamilton-McKeon 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.

Jessica DesJardins SPR24/1798 Page 4 July 3, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Megan Hamilton-McKeon