Gisela Bryan v. Acton, Town of - Police Department (SPR 20242904)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 29, 2024 SPR24/2904 Rebecca LeBlanc Records Clerk Acton Police Department 371 Main Street Acton, MA 01720 Dear Ms. LeBlanc: I have received the petition of Gisela Bryan appealing the response of the Acton 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 October 23, 2024, Ms. Bryan requested “a copy of [her] arrest record from 2008.” The Department provided a response on October 23, 2024. Unsatisfied with the Department’s response, Ms. Bryan petitioned this office and this appeal, SPR24/2904, was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Bryan’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 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

Gisela Bryan SPR24/2904 Page 2 October 29, 2024 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 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 October 23rd Response In its October 23, 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. 41, § 97D 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

Gisela Bryan SPR24/2904 Page 3 October 29, 2024 access to the listed individuals or entities. In its response, the Department cites G. L. c. 41, § 97D, which provides in relevant 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 asserts that “exemption A (G.L. c. 41, §97D provides that these records, along with all communications between police officers and victims of such offenses or abuse shall not be public records and shall be maintained by the police departments in a manner that shall assure the confidentiality” and therefore “incident report 2008-p1296 is not releasable to [Ms. Bryan].” The Department may withhold the incident report pursuant to G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). However, based on the Department’s response, it is unclear if the Department possesses an arrest record as requested by Ms. Bryan. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify if additional records exist. Conclusion Accordingly, the Department is ordered to provide a response to Ms. Bryan, 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. Ms. Bryan may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Gisela Bryan SPR24/2904 Page 4 October 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Gisela Bryan