Marcus Daniel v. Holyoke, City of - Police Department (SPR 20252529)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 10, 2025 SPR25/2529 Patricia Alicea Records Access Officer Holyoke Police Department 138 Appleton Street Holyoke, MA 01040 Dear Ms. Alicea: I have received the petition of Daniel Marcus, Esq., of Community Legal Aid, on behalf of his client Christy Martinez, appealing the response of the Holyoke 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 17, 2025, Attorney Marcus requested, the “911 call and police report relating to [an identified individual] on May 2, 2024.” The Department responded on August 7, 2025 and August 19, 2025. Unsatisfied with the responses, Attorney Marcus petitioned this office and this appeal, SPR25/2529, 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

Patricia Alicea SPR25/2529 Page 2 September 10, 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 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 Marcus’ interest in obtaining the records shall have no bearing on the public nature of the records. It is unclear if Attorney Marcus may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Attorney Marcus a greater right of access to the responsive records. The Department’s August 7th and August 19th response On August 7, 2025, the Department responded to Attorney Marcus, asking him to provide a “signed release authorization form from Ms. Martinez.” Attorney Marcus responded on the same day, stating he had “uploaded” the form. In its August 19, 2025 response, the Department stated, “the Department intends to withhold the above-referenced requested records due to the applicability of the following exemptions and the reasons set forth below… Chapter 265 § 24C states that any record ‘which contains the name of the victim in an arrest, investigation or complaint for rape [or] assault with intent to rape’… shall be withheld from public records. Chapter 41 § 97D also states that rape reports shall not be open to the public.” Current appeal In his appeal, Attorney Marcus stated, “[c]ounsel requested reconsideration of the decision because Ms. Martinez was the named victim in the report. In fact, Ms. Martinez was the reporting party. Counsel also provided the signed released [the Department] required from Ms. Martinez, however, [the Department] upheld its denial of the request.” 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

Patricia Alicea SPR25/2529 Page 3 September 10, 2025 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: 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. Communications between police officers and victims of said offenses and abuse may also be shared with the forgoing named persons if such access is necessary in the performance of their duties. . . G. L. c. 41, § 97D. 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

Patricia Alicea SPR25/2529 Page 4 September 10, 2025 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 and communications “shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality”). Conclusion Accordingly, I will consider this administrative appeal closed. If Attorney Marcus 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: Daniel Marcus, Esq.