Gloria Cadder v. Swampscott, Town of - Police Department (SPR 20250400)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2025 SPR25/0400 Michael J. Frayler Administrative Lieutenant Swampscott Police Department 531 Humphrey Street Swampscott, MA 01907 Dear Lieutenant Frayler: I have received the petition of Gloria Cadder appealing the response of the Swampscott 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 February 10, 2025, Ms. Cadder requested a report related to an incident at an identified address that occurred on April 22, 2023. The Department responded on February 11, 2025. Unsatisfied with the response, Ms. Cadder petitioned this office and this appeal, SPR25/0400, was opened as a result. Status of Requestor In her appeal petition, Ms. Cadder states “[t]he condo unit … is contained within the property that I own… I believe that having this information is important to my safety and wellbeing.” Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Cadder’s status as the owner of the property in the requested record will play no role in a determination as to whether the record should be disclosed or redacted under the Public Records Law. 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 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

Michael J. Frayler SPR25/0400 Page 2 February 21, 2025 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. Att’y 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 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 February 11th Response In its February 11, 2025 response, the Department states it is “in possession of a report for the date and address you requested. However, pursuant to M.G.L. laws regarding the release of records, in particular pursuant to [G. L. c. 4, § 7(26)(a)] and [G. L. c. 41, § 97D] relating to domestic situations, the report cannot be released.” 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

Michael J. Frayler SPR25/0400 Page 3 February 21, 2025 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 February 11th 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. 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 records 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. Cadder with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Gloria Cadder