Ken Silva v. Dalton, Town of - Police Department (SPR 20243045)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 21, 2024 SPR24/3045 Rebecca L. Whitaker Records Access Officer Town of Dalton 462 Main Street Dalton, MA 01226 Dear Ms. Whitaker: I have received the petition of Ken Silva, of Headline USA, appealing the response of the Town of Dalton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2024, Mr. Silva requested “the police report for the 12-year- old student from Nessacus Regional Middle School who faces a misdemeanor charge of criminal harassment for his anti-Semitic remarks directed at a teacher at that school... also... any and all other publicly available records related to this case.” The Town responded on November 8, 2024. Unsatisfied with the Town’s response, Mr. Silva petitioned this office, and this appeal, SPR24/3045, 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. 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

Rebecca L. Whitaker SPR24/3045 Page 2 November 21, 2024 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 Town’s November 4th Response In its November 4, 2024 response, the Town states that “[t]he information you are requesting is not releasable, under Exception A, due to the age of the alleged perpetrator, a juvenile. There are no additional records regarding this incident.” 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. Based on the Town’s response, it is unclear which statute or statutes the Town is referring to under Exemption (a) in order to withhold the responsive records. 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”). The Town must clarify what statute it claims either specifically, or by necessary implication, permits withholding of the responsive records, and must explain with specificity how such a statute applies. See G. L. c. 4, § 7(26)(a).

Rebecca L. Whitaker SPR24/3045 Page 3 November 21, 2024 Conclusion Accordingly, the Town is ordered to provide Mr. Silva 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: Ken Silva