Annie Maurer v. Holyoke, City of - Police Department (SPR 20250061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 17, 2025 SPR25/0061 Officer Caron L. Porter Holyoke Police Department Records Bureau 138 Appleton Street Holyoke, MA 01040 Dear Officer Porter: I have received the petition of Annie Maurer, appealing the response of the Holyoke 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 December 23, 2024, Ms. Maurer requested, “[a] copy of the entire case file related to the sexual assault investigation of [a named individual] against two child witnesses… including the original investigation that took place in 2017 and the second investigation that took place in 2019.” The Department provided a response on January 5, 2025, withholding records. Unsatisfied with the Department’s response, Ms. Maurer petitioned this office and this appeal, SPR25/0061, 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

Officer Caron L. Porter SPR25/0061 Page 2 January 17, 2025 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 January 5th Response In its January 5, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold responsive records. Current Appeal In her appeal, Ms. Maurer states, “I believe there are documents in the file that are not ‘reports of rape’ or communications between police officers and victims as defined by Chapter 41 § 97D, that can be turned over pursuant to my request. To the extent the remaining documents, for example communication with the suspect or interviews with other witnesses, or police investigation logs contain the victim’s name, these documents can be redacted to comply with Chapter 265 § 24C.” 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, 54 (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.

Officer Caron L. Porter SPR25/0061 Page 3 January 17, 2025 In its January 5th response, the Department cites G. L. c. 265, § 24C and G. L. c. 41, § 97D, and states the following: Chapter 265 § 24C states that any record “which contains the name of the victim in an arrest, investigation or complaint for rape of assault with intent to rape ... or a complaint for human trafficking of persons” (for sexual servitude) shall be withheld from public records. Chapter 41 § 97D also states that rape reports shall not be open to the public. 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 c. 209A sec. 1, 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 The statutes, G. L. c. 265, § 24C and G. L. c. 41, § 97D, state in relevant parts: 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, 13B1/2, 13B3/4, 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… G. L. c. 265, § 24C. 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. Under G. L. c. 41, § 97D, the Department states, “Chapter 41 § 97D also states that rape reports shall not be open to the public. . . .” Based on the Department’s response, it is unclear what records the Department possesses and how the requested records fall within the type of records contemplated in G. L. c. 41 § 97D.

Officer Caron L. Porter SPR25/0061 Page 4 January 17, 2025 The Department merely cites G. L. c. 265, § 24C and G. L. c. 41, § 97D, without any further explanation as to the statutes’ applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). Further, it is unclear why the records may be withheld in its entirety. It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Maurer with a response to her request 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: Annie Maurer