Leigh A. Panettiere v. Everett, City of - Police Department (SPR 20243040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2024 SPR24/3040 Christopher Hannon Department Records Access Officer Everett Police Department 45 Elm Street Everett, MA 02149 Dear Officer Hannon: I have received the petition of Leigh A. Panettiere, Esq., of The Law Offices of Leigh Panettiere, P.C., appealing the response of the Everett 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 August 30, 2024, Attorney Panettiere requested the following records: [1] Formal Officer’s Report/Narrative Report, for the homicide call on December 19, 2018, Incident No. 752732. The log for this call is attached for your convenience. [2] Official Everett Police Department and/or City of Everett records showing that compensation or overtime was paid to [an identified individual] for working on December 19, 2018. [3] Official Everett Police Department and/or City of Everett records demonstrating that [an identified individual] worked during the overnight and morning hours of December 18, 2018 – December 2019, including but not limited to schedules, duty rosters, attendance sheets, detail sheets, court schedules, court subpoenas, etc. [4] Official Everett Police Department and/or City of Everett attendance records for [an identified individual] reflecting his work status on December 18 and 19, 2018. The Department responded on August 30, 2024. Unsatisfied with the Department’s response, Attorney Panettiere petitioned this office and this appeal, SPR24/3040, was opened as a result. 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

Officer Christopher Hannon SPR24/3040 Page 2 November 25, 2024 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). 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 August 30th Response In its August 30, 2024 response, the Department produced attendance records for [the identified individual] for the dates: “18 & 19 Dec 2018 [and] 18 Dec 2018 thru 18 Dec 2019.” The Department cited G. L. c. 41, § 97D in support of withholding a responsive report. 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, 545-546 (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.”

Officer Christopher Hannon SPR24/3040 Page 3 November 25, 2024 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 cited G. L. c. 41, § 97D, which 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 stated, “[t]he report you are looking for is exempt from release under GL c41 s97D.” Based on the Department’s response, it is unclear how the requested record is restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). With regard to Item 2, based on Attorney Panettiere’s claims, in conjunction with the Department’s response, it is unclear if the Department possesses any records responsive to the request. 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 whether responsive records exist. Conclusion Accordingly, the Department is ordered to provide Attorney Panettiere 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. Attorney Panettiere may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Officer Christopher Hannon SPR24/3040 Page 4 November 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Leigh A. Panettiere, Esq.