Jenna Brownson v. Ayer, Town of - Police Department (SPR 20241907)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1907 Brian Gill Deputy Chief Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Deputy Chief Gill: I have received the petition of Jenna Brownson appealing the response of the Ayer 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 14, 2024, Ms. Brownson requested, “a copy of a police report or reports relative to an incident that occurred in early 1997, likely March 1997 at [a specified location] concerning [an identified individual][.]” The Department provided a response on June 21, 2024, denying the request and claiming the responsive records are exempt from disclosure under Exemption (a) of the Public Records Law and G. L. c. 265, § 24C. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Ms. Brownson petitioned this office and this appeal, SPR24/1907, 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. Att’y 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 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

Brian Gill SPR24/1907 Page 2 July 18, 2024 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 states that it has withheld certain records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Department cited G. L. c. 265, § 24C as the basis for withholding the requested records. 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. 265, § 24C, which provides in relevant part: That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape under section thirteen B, 13B ½, 13B ¾, twenty-two, twenty-two A, 22B,

Brian Gill SPR24/1907 Page 3 July 18, 2024 22C, twenty-three, 23A, 23B, twenty-four or twenty-four B, inclusive, of chapter two hundred and sixty-five, or an arrest, investigation or complaint for trafficking of persons under section 50 of said chapter 265, shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted. Said portion of such court record or police record shall not be deemed to be a public record under the provisions of section seven of chapter four. Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph. A violation of this section shall be punishable by a fine of not less than two thousand five hundred dollars nor more than ten thousand dollars. G. L. c. 265, § 24C. In its response, the Department asserts that “at this time your request is denied … [i]n accordance with the Public Records Access Regulations, M.G.L. Chapter 4, §7(26)(a) - The Statute Exemption, Specifically Chapter 265 § 24C States any record containing an investigation or complaint of assault with intent to rape shall be withheld from public record.” Based on the Department’s June 21st response, it is unclear what records the Department intends to withhold from disclosure. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”); see also 950 C.M.R. 32.06(3)(c)(4). Further, it is uncertain how the withheld records fall within the type of records contemplated under G. L. c. 265, § 24C. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. See G. L. c. 66, § 10(b)(iv). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide a response to Ms. Brownson, 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.

Brian Gill SPR24/1907 Page 4 July 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jenna Brownson