Jason Graziadei v. Nantucket, Town of - Police Department (SPR 20243066)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2024 SPR24/3066 Deputy Chief Charles Gibson Nantucket Police Department 4 Fairgrounds Road Nantucket, MA 02554 Dear Deputy Chief Gibson: I have received the petition of Jason Graziadei, of the Nantucket Current, appealing the response of the Nantucket 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 November 3, 2024, Mr. Graziadei requested all reports and written records in possession of the Nantucket Police Department related to the following cases noted in the public log on Friday, November 1, 2024: 21:39 20 Field Av Finished/Clear-Report Required Noise Complaint/Loud Party (NOI) and 22:42 Surfside Rd/Boulevarde Finished/Clear-Report Required Suspicious Activity (SUS).” The Department responded on November 12, 2024. Unsatisfied with the Department’s response, Mr. Graziadei petitioned this office, and this appeal, SPR24/3066, 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

Deputy Chief Charles Gibson SPR24/3066 Page 2 November 22, 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. Current Appeal In his appeal petition, Mr. Graziadei contends the following: [W]e believe these police reports can and should be provided with appropriate redactions to protect the identities of any juveniles who may be named in the documents we requested. Such redactions are common and standard. We did not request “delinquency records” as suggested in the police department’s denial. We requested police officer reports and CAD dispatch entries for the two incidents we mentioned in our initial request. It is our belief that these records can be released with appropriate redactions to conceal the names of any juveniles in the reports. The Department’s November 12th Response In its November 12, 2024 response, the Department indicates that it is withholding responsive records pursuant to G. L. c. 119, § 60A as it operates through Exemption (a) of the Public Records Law. 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.”

Deputy Chief Charles Gibson SPR24/3066 Page 3 November 22, 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 November 12th response, the Department cites G. L. c. 119, § 60A, which provides in pertinent part as follows: The records of a youthful offender proceeding conducted pursuant to an indictment shall be open to public inspection in the same manner and to the same extent as adult criminal court records. All other records of the court in cases of delinquency arising under sections fifty-two to fifty-nine, inclusive, shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney; provided further, that nothing herein shall be construed to provide access to privileged or confidential communications and information; and provided further, that said protections shall be construed to include information and communications entered at the indictment. G. L. c. 119, § 60A. In its response, under the statute cited above, the Department argues the following: Records that you requested is an investigation of a matter where juveniles were involved. . . . Chapter 119 Section 60A indicates that juvenile delinquency records shall not be open to the public (under age 18). The statue states in relevant part “delinquency …shall be withheld from public inspection except with the consent of a justice of such court; provided, however, that such records shall be open, at all reasonable times, to inspection by the child proceeded against, his parents, guardian or attorney.” Based on the Department’s November 12th response, it is unclear how the responsive records are the type contemplated under G. L. c. 119, § 60A. Specifically, it is unclear how the withheld records constitute records in a case “of delinquency arising under sections fifty-two to fifty-nine,” as required by the statute. The Department must clarify this. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under the statute 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

Deputy Chief Charles Gibson SPR24/3066 Page 4 November 22, 2024 for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Conclusion Accordingly, the Department is ordered to provide Mr. Graziadei 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: Jason Graziadei