Enide Florestal v. Randolph, Town of - Police Department (SPR 20250441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2025 SPR25/0441 Christine R. Morse Lieutenant Randolph Police Department 41 South Main Street Randolph, MA 02368 Dear Lieutenant Morse: I have received the petition of Enide Florestal, on behalf of Judy Heller, Esq., appealing the response of the Randolph 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 4, 2024, Attorney Heller requested body camera footage relating to a specific incident. Previous Appeal This request was the subject of a previous appeal. See SPR25/0152 Determination of the Supervisor of Records (January 17, 2025). In my January 17th determination, I found that the Department was not permitted to assess a fee for time spent responding to the request. The Department provided a response on February 13, 2025. Unsatisfied with the response, Ms. Florestal petitioned this office and this appeal, SPR25/0441, 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. 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 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

Christine R. Morse SPR25/0441 Page 2 February 20, 2025 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. Status of the Requestor; Reason for the Request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Heller’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s February 13th Response In its February 13, 2025 response, the Department provided approximately 10 minutes of video footage responsive to the request. The Department withheld the remaining responsive records pursuant to G. L. c. 41, § 97D and G. L. c. 6, § 167 – 178B, as the statutes operate through Exemption (a) of the Public Records Law. Current Appeal In her February 13, 2025 petition to this office, Ms. Florestal objected to the withholding of responsive records. 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).

Christine R. Morse SPR25/0441 Page 3 February 20, 2025 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. Criminal Offender Record Information (CORI) In its February 13, 2025 response, the Department relies upon G. L. c. 6, § 167 – 178B, which defines criminal offender record information as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Based on the Department’s response, it is unclear how the responsive records constitute CORI as described in G. L. c. 6, § 167. Specifically, it is unclear how body worn camera footage constitutes “… information recorded in criminal proceedings that are not dismissed before arraignment.” Consequently, the Department has not met its burden to withhold the requested records, in their entirety, under the CORI Act. See G. L. c. 66, § 10(a); Reinstein v. Police

Christine R. Morse SPR25/0441 Page 4 February 20, 2025 Comm’r of Boston, 378 Mass. 281, 289-90 n.18 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). G. L. c. 41, § 97D In its February 13, 2025 response, the Department relies upon 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; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates ... G. L. c. 41, § 97D. In its response, the Department states: [T]his case was in relation to a domestic violence arrest where the victim is a juvenile … The requested records contain specifically: [1] BWC of [an identified individual] 6 min 11 sec - communication with the juvenile victim[;] [2] BWC of [an identified individual] 6 min 04 sec - communication with the juvenile victim[;] [3] BWC of [an identified individual] 1 min 34 sec - arrest related charges and communication regarding the juvenile victims statements [4] BWC of [an identified individual] 10 min 30 sec - an arrest of an identifiable female, an arrest of an identifiable male, and communication with the juvenile victim[;] [5] BWC of [an identified individual] 29 min 33 sec - a portion of this video is withheld due to an arrest of an identifiable female, an arrest of an identifiable male[;] [6] BWC of [an identified individual] 38 min 37 sec - communication with the juvenile victim, conversations with the defendants prior to arrest, an arrest of an identifiable female, an arrest of an identifiable male[.] To the extent that the responsive records contain communications between police officers and a victim of abuse perpetrated by family or household members, I find that the Department may permissibly withhold such portions from disclosure. However, the Department has not met

Christine R. Morse SPR25/0441 Page 5 February 20, 2025 its burden to show that all the responsive records are exempt from disclosure in their entirety. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Ms. Florestal with a response to the 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. Ms. Florestal may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Enide Florestal