Carlos Fundora v. Salem, City of - Police Department (SPR 20252795)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2025 SPR25/2795 Ann Marie Greene Records Access Officer Salem Police Department 95 Margin Street Salem, MA 01970 Dear Ms. Greene: I have received the petition of Carlos Fundora appealing the response of the Salem 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 25, 2025, Mr. Fundora requested, “full, unredacted electronic copies of all arrest and incident reports, and supplements naming [an identified individual] related to: Salem DC 1543CR01545 (2025)[;] Salem DC 1536RO01545 (2025)[;] Salem DC 0236CR001837 (2002); and any related incidents.” The Department responded on August 25, 2025 and September 8, 2025. Unsatisfied with the responses, Mr. Fundora petitioned this office and this appeal, SPR25/2795, 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

Ann Marie Greene SPR25/2795 Page 2 October 6, 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. The Department’s August 25th and September 8th Responses In its August 25, 2025 response, the Department acknowledged receipt of Mr. Fundora’s request, and in its September 8, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold two police reports in their entirety. Current Appeal In his appeal to this office, Mr. Fundora objected to the Department’s withholding of the police reports. 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, 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 its response, the Department cited G. L. c. 41, § 97D to withhold the responsive records in their entirety. G. L. c. 41, § 97D provides in pertinent part:

Ann Marie Greene SPR25/2795 Page 3 October 6, 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… 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. A 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 Mr. Fundora 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. Mr. Fundora may appeal the substantive nature of the Department’s response within ninety (90) days. See C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Carlos Fundora