Greta Jochem v. Northampton, City of - Police Department (SPR 20251268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 16, 2025 SPR25/1268 Jennifer DiCarlo A/P & Records Assistant Division Northampton Police Department 29 Center Street Northampton, MA 01060 Dear Ms. DiCarlo: I have received the petition of Greta Jochem, of The Republican/MassLive.com/ El Pueblo Latino, appealing the response of the Northampton 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 April 16, 2025, Ms. Jochem requested, “...all police reports any police records related to a July 2024 report of sexual assault/abuse at Highview of Northampton. It is referenced in this [identified] federal report ...” The Department responded on April 30, 2025. Unsatisfied with the response, Ms. Jochem petitioned this office and this appeal, SPR25/1268, was opened as a result. Subsequently, the Department provided a supplemental response dated May 8, 2025. 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

Jenifer DiCarlo SPR25/1268 Page 2 May 16, 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 April 30th and May 8th Responses In its April 30, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold these records in their entirety. In a supplemental response dated May 8, 2025, the Department stated, “... the only record in the care, custody, or control of the Northampton Police Department that is responsive to this request is one police report, which is not a public record.” Current appeal In her appeal, Ms. Jochem states, “I am appealing that and would ask that any victim information be redacted to keep their report of abuse confidential.” 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.

Jenifer DiCarlo SPR25/1268 Page 3 May 16, 2025 In its April 30th response, the Department cited 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. In its response, the Department stated, “[t]he identified police report is documentation of an alleged sexual assault and/or abuse. You as the requestor ... are not one of the aforementioned individuals or agencies permitted access to the requested record; therefore the Department has withheld this document in its entirety due to its sensitive nature under G. L. c. 41, section 97D as stated above.” In camera Inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the requested records pursuant to Exemption (a) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal

Jenifer DiCarlo SPR25/1268 Page 4 May 16, 2025 community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Greta Jochem