Todd Wallack v. Middlesex District Attorney's Office (SPR 20243000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2024 SPR24/3000 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2024, Mr. Wallack requested “[a]ny accusations of sexual assault or rape allegedly committed by [a specifically identified individual] in the agency’s records, excluding reports of a rape in Acton on June 18, 2013.” The Office responded on November 5, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/3000, 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

Daniel M. DeBlander, Esq. SPR24/3000 Page 2 November 19, 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 Office’s November 5th Response In its November 5, 2024 response, the Office cites G. L. c. 41, § 97D and G. L. c. 265, § 24C, as they operate through Exemption (a) of the Public Records Law, for withholding responsive records. 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, 154 (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 November 5th response, the Office cites G. L. c. 41, § 97D, which provides in pertinent part as follows: 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney,

Daniel M. DeBlander, Esq. SPR24/3000 Page 3 November 19, 2024 others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 G. L. c. 41, § 97D. Additionally, in its November 5th response, the Office cites G. L. c. 265, § 24C, which provides as follows: 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, 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, under Exemption (a), and the statutes cited above, the Office argues the following: [A]ny records in this Office’s possession, custody or control that would be responsive to your request are barred from disclosure. Specifically, the records you have requested are exempt from disclosure as they are “explicitly…exempted from disclosure by statute.” G.L. c. 4, § 7(26)(a) (statutory exemption). Any responsive records are governed by G.L. c. 41, § 97D, which holds in relevant part that “all reports of rape and sexual assault or attempts to commit such

Daniel M. DeBlander, Esq. SPR24/3000 Page 4 November 19, 2024 offenses…and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained…in a manner that shall assure their confidentiality.” See Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2015) (finding that in a public records request for district attorney’s case file involving charges of rape that “there is no obligation on [a] district attorney to produce documents under the public records law…because materials relating to an allegation of sexual assault are exempt from that law,” citing G.L. c. 41, § 97D, G.L. c. 265, § 24C). Violation of section 97D is a criminal offense, and as such this Office is barred by law from disclosing any records. Based on the information provided in the Office’s November 5th response, it is unclear how the withheld records constitute the type of record contemplated under G. L. c. 41, § 97D and c. 265, § 24C. The Office must clarify this. Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under the statutes cited above. 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 Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Office 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. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack