Nikki Alibozek v. Berkshire District Attorney's Office (SPR 20252746)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2025 SPR25/2746 Joseph A. Pieropan Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Nicole Alibozek appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 12, 2025, Ms. Alibozek requested “[a]llegations of [two identified individuals] having inappropriate contact, [an identified individual] was not charged with any crime, he was not assigned a lawyer any and all information regarding this case as it is pertinent information for probate court documentation and in an event for a trial.” The Office responded on September 17, 2025 and September 25, 2025. Unsatisfied with the responses, Ms. Alibozek petitioned this office and this appeal, SPR25/2746, 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

Joseph A. Pieropan SPR25/2746 Page 2 September 30, 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, Ms. Alibozek’s interest in obtaining the reports shall have no bearing on the public nature of the records. The Office’s September 17th and September 25th Responses On September 17, 2025, the Office responded to Ms. Alibozek, stating “[the Office] respectfully denies your request for these records pursuant to G. L. c. 4, § 7(26)(a). Subsequent to the opening of this appeal, the Office further responded on September 25, 2025, maintaining its position that the records Ms. Alibozek seeks are exempt from disclosure under G. L. c. 119, § 51E. Current appeal In her appeal, Ms. Alibozek states, “I am requesting this documentation for court purposes, the probate court and also for appellate, civil and superior court regarding the trauma that both of my children are facing at the hands of their fathers and most importantly DCF.” 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).

Joseph A. Pieropan SPR25/2746 Page 3 September 30, 2025 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 its September 17th response, the Office stated, “[the Office] respectfully denies your request for these records pursuant to G. L. c. 4, § 7(26)(a) which exempts from public disclosure any records that are ‘specifically or by necessary implication exempted from disclosure by statute.’ Subsequent to the opening of this appeal, the Office contacted the Public Records Division via email on September 25th, stating, “the [Office] respectfully cites to the provisions of G. L. c. 119, § 51E -- Abuse and Neglect — Maintain Written Reports; Confidentiality; Inspection – to further support the denial of this request…[the Office] maintains that Ms. Alibozek cannot obtain copies of the DCF referrals without first obtaining the approval of the Commissioner of Children and Families, and that only the Commissioner is authorized to release such documents in his or her discretion.” G. L. c. 119, § 51E provides, in relevant part: The department shall maintain a file of the written reports prepared under this section and sections 51A to 51D, inclusive. These written reports shall be confidential. Upon request and with the approval of the commissioner, copies of written reports of initial investigations may be provided to: (i) the child’s parent, guardian, or counsel, (ii) the reporting person or agency, (iii) the appropriate review board, (iv) a child welfare agency of another state for the purpose of assisting that agency in determining whether to approve a prospective foster or adoptive parent, or (v) a social worker assigned to the case. Based on the Office’s responses, where the records Ms. Alibozek seeks are restricted from disclosure in their entirety by the Legislature under G. L. c. 119, § 51E, as it operates through Exemption (a), I find the Office has met its burden in responding to this request under the Public Records Law. See G. L. c. 119, § 51E (providing that these reports “shall be confidential.”). Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Alibozek is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Joseph A. Pieropan SPR25/2746 Page 4 September 30, 2025 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: Nicole Alibozek