Lisa Gomes v. Plymouth, Town of - Police Department (SPR 20252511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 9, 2025 SPR25/2511 Sergeant Benjamin Dexter Records Division Plymouth Police Department 20 Long Pond Road Plymouth, MA 02360 Dear Sergeant Dexter: I have received the petition of Lisa Gomes appealing the response of the Plymouth 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 22, 2025, Ms. Gomes requested “…all public records from every time the cops were called to [a specified address].” The Department responded on the same day, August 22, 2025. Unsatisfied with the response, Ms. Gomes petitioned this office and this appeal, SPR25/2511, 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 custodian must provide the responsive 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

Sergeant Dexter SPR25/2511 Page 2 September 9, 2025 The Department’s August 22nd response In its August 22, 2025 response, the Department stated, “[t]he report from 8/22/25 and 7/18/25 are denied for the reasons listed below.” The Department cited G. L. c. 41, §97D as it operates through Exemption (a) of the Public Records Law to withhold the requested records. The Department also cited Exemption (c) of the Public Records Law to withhold the requested records. Current appeal In her appeal, Ms. Gomes stated “I am sending this appeal as I am not sure why I’m being denied my request ... I am requesting these two records be sent to me as well as any records from the past few years where I have had to call on them. This has been an ongoing situation with them and the Plymouth police department has now told us that we can file a 258E harassment prevention order with the courts . . .” 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. G. L. c. 41, § 97D provides in relevant part:

Sergeant Dexter SPR25/2511 Page 3 September 9, 2025 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 as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276. . . . G. L. c. 41, § 97D. G. L. c. 41, § 98F provides in relevant part: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person who has not yet reached 18 years of age. In its response, the Department asserted, “…some information contained in responsive record(s) is exempt from the definition of a public record . . . some or all of your response may have been redacted or completely withheld for the following reason(s): Reports,

Sergeant Dexter SPR25/2511 Page 4 September 9, 2025 Communications, and Records Related to Calls and Responses of Domestic Violence, Rape, and Sexual Assault.” The Department further stated, Exemption (a) – Statutory Exemption [G.L. c. 41, §§97D and 98F] – 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. Police log entries concerning responses to and arrests for same shall also not be disclosed. G.L. c. 41, §98F. G.L. c. 265, §24 also prohibits release of any record containing the name of a victim in an arrest, investigation, or complaint of certain sexual assault offenses. Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Second Clause Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass.

Sergeant Dexter SPR25/2511 Page 5 September 9, 2025 App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In its response, the Department states, “[f]inally, reports are likely also exempted from disclosure via G.L. c. 4, §7(26)(c) – Exemption (c) [Privacy Exemption], as the risk of unwarranted invasion of personal privacy outweighs the public interest in the requested information regarding documentation of marital status, sexual assault, and family fights. See Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 443 n.17 (2019).” Based on the Department’s response, as the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 41, § 97D as it operates through Exemption (a), I find the Department has met its burden in responding to this request under the Public Records Law. See G. L. c. 41, § 97D (providing that these reports “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). I therefore decline to opine on the applicability of Exemption (c) to the requested records. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Gomes is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Lisa Gomes