Michal Durakiewicz v. Tyngsborough, Town of - Police Department (SPR 20251747)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 2, 2025 SPR25/1747 Shaun M. Woods Chief of Police Tyngsborough Police Department 20 Westford Road Tyngsborough, MA 01879 Dear Chief Woods: I have received the petition of Attorney Michal Durakiewicz, of Durak Law, on behalf of Leah Robertson, of BWI Investigations, appealing the response of the Tyngsborough 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 March 13, 2025, Ms. Robertson requested, “information…and any reports” related to a specific 2019 incident. The Department responded on March 21, 2025. Unsatisfied by the response, Attorney Durakiewicz petitioned this office and this appeal, SPR25/1747, 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

Shaun M. Woods SPR25/1747 Page 2 July 2, 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. Status of the Requestor Please note that under the Public Records Law 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, Attorney Durakiewicz’s status will play no role in a determination as to whether the records should be disclosed or withheld under the Public Records Law. The Department’s March 21st Response In its March 21, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold a “Department RMS entry” in its entirety. Current appeal In his appeal to this office, Attorney Durakiewicz stated: I understand that this record is kept in a manner that assures the confidentiality of the victim. My client has a compelling interest in seeking out the information requested, in that the information requested is exculpatory in my client’s Tennessee criminal case under Brady v. Maryland, 373 U.S. 83 (1963). I am therefore requesting a redacted version of the file that will allow me to ascertain the circumstances of the alleged incident, as well as the name of the alleged perpetrator. 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

Shaun M. Woods SPR25/1747 Page 3 July 2, 2025 restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In response, the Department cited G. L. c. 41, § 97D, indicating that the requested records are exempt from disclosure. G. L. c. 41, § 97D 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 upon the Department’s response, it is unclear how the requested records fall 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 records. As 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 Attorney Durakiewicz with a response to this 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 to this office at pre@sec.state.ma.us. Attorney Durakiewicz may appeal the substantive nature of the Department’s response within ninety (90) days. See C.M.R. 32.08(1).

Shaun M. Woods SPR25/1747 Page 4 July 2, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Attorney Michal Durakiewicz