Pamela Clark v. Weymouth, Town of - Police Department (SPR 20250320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 13, 2025 SPR24/0320 Erin Metcalf Police Captain Records Access Officer Weymouth Police Department 140 Winter Street Weymouth, MA 02188 Dear Captain Metcalf: I have received the petition of Pamela Clark 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 January 23, 2025, Ms. Clark requested an incident report for a specified incident that took place on 08/31/2023. The Department provided a response on an unknown date. Unsatisfied with the Department’s response, Ms. Clark petitioned this office and this appeal, SPR25/0320, 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, § l0A(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

Captain Erin Metcalf SPR25/0320 Page 2 February 13, 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 Response In its response, the Department cited Exemption (a) of the Public Records Law to withhold the responsive record. Subsequent to the opening of this appeal, on February 4, 2025, the Department sent an email to this office and stated, “[t]his Public Records request was handled back in October… [Ms. Clark] did not appeal the denial within the specified time period. She then made another Public Records request for the same reports that could not be disseminated the first under Exemption A and requested another denial letter which I issued in response to her request on 23 January… Note that she had apparently misplaced the first letter issued if memory serves. She’s essentially making the same request that had been previously answered and denied. She then failed to appeal the denial in the proper period so she simply repeated her request.” Current appeal In her appeal, Ms. Clark states, “I’m seeking this appeal so that I can take legal action, may that be of a criminal or civil manner. To do so I will need the report. I was not made aware this report existed until I requested a log of all reports.” 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.”

Captain Erin Metcalf SPR25/0320 Page 3 February 13, 2025 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 cites 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. Under Exemption (a), the Department stated, “[G. L. c. 41, § 97D] refers to confidentiality of reports of rape, sexual assault and domestic violence; access by victim and certain individuals in performance of their duties.” Based on the Department’s response, it is unclear how the requested record falls within the type of records contemplated in G. L. c. 41 § 97D. The Department merely cites G. L. c. 41, § 97D, without any further explanation as to the statute’s applicability to the responsive record. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested record(s) for compliance with the Public Records Law. G. L. c. 66, § 10(b)(iv). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Clark 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: Pamela Clark