Rachel Congdon v. Orange, Town of - Police Department (SPR 20252332)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 25, 2025 SPR25/2332 Lieutenant Adam Cooley Orange Police Department 400 East River Street Orange, MA 01364 Dear Lieutenant Cooley: I have received the petition of Rachel Congdon appealing the response of the Orange 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 August 7, 202,5 Ms. Congdon requested “... the police report and any related documents to the police response that resulted in [an identified individual], being transported to the ER in Athol[.]” The Department responded on August 8, 2025. Unsatisfied with the response, Ms. Congdon petitioned this office and this appeal, SPR25/2332, 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. 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 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

Lieutenant Adam Cooley SPR25/2332 Page 2 August 25, 2025 custodian must provide the responsive records. Status of Requestor 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. Congdon’s purpose in making the request has no bearing on the public status of any existing responsive records. The Department’s August 8th response In its August 8, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold the requested records. Current appeal In her appeal, Ms. Congdon stated “I am writing this appeal in an effort to attain the police report related to my father’s hospitalization. In order to best facilitate his care from afar, I need this information to better understand what occurred the evening an officer responded and resulted in my father being issued a Section 12, or deemed an imminent threat to himself and/or others.” 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.”

Lieutenant Adam Cooley SPR25/2332 Page 3 August 25, 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 stated, “[d]ue to the nature of the call that [Ms. Congdon is] requesting, this request is being denied. This request is denied under exemption A of the Public Record Laws which prohibits the Police Department from releasing certain calls due to the nature of the call.” Subsequent to this appeal being opened, a staff attorney in the Public Records Division spoke with the Department, who advised “the chapters and sections for the denial would be G. L. c.123, §36 for the mental health facilities records as well as G.L. 19A, § 23 for the protective services records.” The statutes state in pertinent parts as follows: The department shall keep records of the admission, treatment and periodic review of all persons admitted to facilities under its supervision. Such records shall be private and not open to public inspection except (1) upon proper judicial order whether or not in connection with pending judicial proceedings, (2) that the commissioner shall allow the attorney of a patient or resident to inspect records of said patient or resident if requested to do so by the patient, resident or attorney ... G. L. c.123, § 36. Except as otherwise provided in this section, all records containing personal data which are created, collected, used, maintained or disseminated pursuant to this chapter shall not be public records, and shall be governed by the provisions of chapter sixty-six A, the notice provisions of section sixty-three of chapter thirty and the enforcement provisions of section three B of chapter two hundred and fourteen. G. L. c. 19A, § 23. Based on the Department’s August 8th response, I find that it is unclear how the above referenced statutes, either specifically or by necessary implication, permit the Department to withhold from disclosure the records in its possession. Further, it is unclear what types of records the Department possesses that it withheld from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the record(s) in its possession that it withheld under Exemption (a) of the Public Records Law. The Department must clarify these matters.

Lieutenant Adam Cooley SPR25/2332 Page 4 August 25, 2025 Conclusion Accordingly, the Department is ordered to provide Ms. Congdon 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. Ms. Congdon may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rachel Congdon