Todd Wallack v. Weymouth, Town of - Police Department (SPR 20242145)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2145 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.] Previous Appeal This request was the subject of a previous appeal. See SPR24/1744 Determination of the Supervisor of Records (July 5, 2024). In my July 5th determination, I found it unclear what statute the Department is claiming to withhold the responsive records. The Department provided a response on July 29, 2024. Unsatisfied with the Department’s response, Mr. Wallack petitioned this office and this appeal, SPR24/2145, 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). 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 SPR24/2145 Page 2 August 12, 2024 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 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 July 29th Response In its July 29, 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

Captain Erin Metcalf SPR24/2145 Page 3 August 12, 2024 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 July 29th response, the Department cited G. L. c. 41, § 97D, indicating that the records are exempt from disclosure. G. L. c. 41, § 97D provides in pertinent 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 response, the Department advised that, “[t]he Department has the records, both criminal complaints and dockets numbers, however, these records are protected under Exemption A – citing M.G.L. c. 41, § 97(D) ... This case has reports that contain specific details regarding an alleged sexual assault. These reports generated criminal complaints and a docket number. Due to the sensitivity and nature of the allegations reported and the charges filed providing these documents could expose or potential[ly] identify the victim of an alleged sexual assault.” 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 upon the Department’s response, it is unclear how the requested records, in their entirety, are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). Further, it is uncertain how the responsive records are the type contemplated by G. L. c. 41, § 97D. Also, the Department must clarify whether segregable portions can be provided. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). 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.

Captain Erin Metcalf SPR24/2145 Page 4 August 12, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack