Julia Lagerholm v. Weymouth, Town of - Police Department (SPR 20243202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2024 SPR24/3202 Lieutenant Mark Sirignano Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Lieutenant Sirignano: I have received the petition of Julia Lagerholm, of the Federal Public Defender Office, appealing the response of the Weymouth 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 September 11, 2024, Ms. Lagerholm requested, “... any and all calls-for-service, logs, notes, and/or incident reports involving [an identified individual] ... from 2010-present day.” The Department provided a response, which Ms. Lagerholm received on September 25, 2024. Unsatisfied with the Department’s response, Ms. Lagerholm petitioned this office and this appeal, SPR24/3202, 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

Lieutenant Mark Sirignano SPR24/3202 Page 2 December 11, 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. Current appeal In her appeal, Ms. Lagerholm stated, “[t]he WPD responded to the request in an undated letter, which I received on September 25, 2024. In denying the request for records, WPD failed to comply with the requirements of M.G. L. c. 66, § 10(b). Specifically, WPD did not ‘identify any records, categories of records or portions of records that the agency […] intends to withhold’. G. L. c. 66, § 10(b)(iv); 905 CMR 32.06(3)(c) ... WPD’s denial of this public records request cites to ‘Exemption A’.... Presumably, WPD draws on M.G. L. c. 4, § 7(26)(a) to assert that the records requested are exempted from disclosure by statute, but the denial letter neither cites to this statute nor does it cite to any statute that exempts the requested records from disclosure.” The Department’s September 25th response In its September 25, 2024 response, the Department cited Exemption (a) of the Public Records Law to withhold the requested records in their entirety. 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.

Lieutenant Mark Sirignano SPR24/3202 Page 3 December 11, 2024 In its response, the Department stated, “[t]his request is denied based on Exemption A which applies to records ‘specifically or by necessary implication exempted from disclosure by statute. Such statute expressly states that such 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.” Upon review, the Department did not cite a statute in support of withholding the requested records pursuant to Exemption (a) of the Public Records Law. The Department is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). Consequently, the Department must state the statute that permits it to withhold the records. Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) it has in its possession that the Department withheld under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Ms. Lagerholm 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. Ms. Lagerholm may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Julia Lagerholm