Debra Silveira v. Boston, City of - Police Department (SPR 20253365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2025 SPR25/3365 Christine O’Donnell, Esq. Assistant Corporation Counsel Office of the Legal Advisor Boston Police Department One City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Debra Silveira appealing the response of the Boston 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 April 7, 2025, Ms. Silveira requested “all emails and materials relivant to or from/Received by the following mentioned individuals [sic]” and included a list of four named individuals. On April 8, 2025, Ms. Silveira modified the scope of her request, explaining that she is “looking for emails both to and from and also pertaining to. From November 2018 till current. If a simple search was run I’d be satisfied with whatever the outcome.” In further correspondence with the Department from May 13, through June 2, 2025, Ms. Silveira narrowed her request to “the individual emails (1,807) without attachments.” I understand the Department assigned reference number B000995-040725 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/3191 Determination of the Supervisor of Records (November 13, 2025). In my November 13th determination, I noted that Ms. Silveira paid fees on June 20, 2025, and I ordered the Department to clarify its claims for withholding responsive records pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Subsequently, the Department responded on November 13, 2025. Unsatisfied with the Department’s response, Ms. Silveira petitioned this office, and this appeal, SPR25/3365, was opened as a result. 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

Christine O’Donnell, Esq. SPR25/3365 Page 2 December 1, 2025 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. Current Appeal In her appeal petition, Ms. Silveira argues the following: They site victim communications with Police officers are the reason for the exemption, and withholding of my records that I paid $982.08 in June of 2025 l. Its my position this is being used as an umbrella to with hold my response records and doesn’t apply to the voluminous records I paid for, I was quoted a high fee in which I paid and was withdrawn from my account, in part for the department forseeing that they would have to reveiw the records and follow certain laws prior to releasing the records to me. . . . Im appealing the request as I feel the City’s response isnt sufficient for with holding the records I previously paid for and under the CMR the records shall be released once paid for[.] The Department’s November 13th Response In its November 13, 2025 response, the Department states that it is withholding responsive records pursuant to G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a).

Christine O’Donnell, Esq. SPR25/3365 Page 3 December 1, 2025 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, 545-46 (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 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

Christine O’Donnell, Esq. SPR25/3365 Page 4 December 1, 2025 G. L. c. 41, § 97D. In its November 13th response, the Department argues the following G.L. c. 41, § 97D protects Department records relating to these offenses in their entirety. As such, any and all reports of these offenses or attempts to commit such offenses are not deemed public and are protected by the Department in a manner that assures their confidentiality, pursuant to G.L. c. 41, §97D. The statute expressly states that such records are not public. The Department does not have discretion to release these records and is prohibited from doing so pursuant to G.L. c. 41, § 97D. The requested records are communications among police officers and investigative officials concerning sexual assault offenses. The records are reports of sexual assaults and refer to reports of sexual assaults. The records also contain information about the victims. As such, the requested records are records that are not meant for public disclosure under G.L. c. 41, § 97D. The plain language of the statute expressly provides that reports of sexual assault and communications between police officers and victims of sexual assault are not public reports. Because these records are reports of sexual assault and contain communications between police officers and victims of sexual assault, these records are the types of records that c. 41, § 97D intended to keep from public disclosure. In its earlier April 22, 2025 response, the Department stated that it possesses “1,807 individual email[s]” and in its June 2, 2025 response, indicated that “there are 2,477 pages” responsive to the revised request for “the individual emails (1,807) without attachments.” In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Christine O’Donnell, Esq. SPR25/3365 Page 5 December 1, 2025 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Debra Silveira