Ferguson, Grace v. Fall River, City of - Police Department (SPR 20260138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2026 SPR26/0138 Amanda Matton Staff Services Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Ms. Matton: I have received the petition of Grace Ferguson, of the New Bedford Light, appealing the response of the Fall River 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 November 10, 2025, Ms. Ferguson requested “all police incident reports for …Highland Avenue in Fall River since November 10, 2023.” It is my understanding that the Department assigned the request reference number P008864-111025. Previous Appeal This request was the subject of a previous appeal. See SPR25/3497 Determination of the Supervisor of Records (December 10, 2025). In my December 10th determination, I ordered the Department to explain with specificity how Exemptions (a) and (c) of the Public Records Law apply to the redacted and withheld responsive records. The Department responded on December 15, 2025 and January 13, 2026. Unsatisfied with the Department’s responses, Ms. Ferguson petitioned this office and this appeal, SPR26/0138, 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). 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

Amanda Matton SPR26/0138 Page 2 January 29, 2025 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. The Department’s December 15th and January 13th Responses In its December 15, 2025 response, the Department provided an updated call log record subject to “revised redactions” under G. L. c. 41, § 97D, as it operates through Exemption (a), as well as Exemption (c) of the Public Records Law. In addition, the Department provided a list of four calls that “show a report was taken, but no actual report is attached to the call.” After further correspondence with Ms. Ferguson, in its January 13, 2026 response, the Department stated, “[w]e had given the explanation per the state had requested in their determination. There will be no correspondence from this office until the state reaches out to us pertaining to the response given in regards to appeal determination.” Current Appeal In her appeal petition, Ms. Ferguson stated, “[t]he department’s responses following the determination have provided little new information, and the department has not met its burden to use the cited exemptions. This second appeal focuses solely on the police reports.” It appears Ms. Ferguson is only appealing the Department’s redacting and withholding of responsive police reports under Exemption (a), regarding “a PDF packet with reports pertaining to this request” which was provided to Ms. Ferguson on November 20, 2025. Ms. Ferguson is not appealing the redactions to the responsive call log record. 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

Amanda Matton SPR26/0138 Page 3 January 29, 2025 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. In its December 15, 2025 response, the Department provided a redaction log and cited G. L. c. 41, § 97D for its redactions to the responsive call log record under Exemption (a). G. L. c. 41, § 97D provides in pertinent 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... G. L. c. 41, § 97D. Regarding the redactions to the responsive call log under G. L. c. 41, § 97D, the Department stated, “[a]ny domestic violence calls or sexual assault calls are not considered public records.” Regarding the Department’s November 20, 2025 response, concerning the responsive police reports redacted under Exemption (a), the Department recited the language of Exemption (a) and noted that the withheld information is “exempt by statute.” The Department additionally stated that it was withholding “reports that are not able to be released which are covered under exemption A.” Although the Department cites G. L. c. 41, § 97D to redact the responsive call log record, it appears the Department did not cite any statutes in support of redacting and withholding the

Amanda Matton SPR26/0138 Page 4 January 29, 2025 responsive police reports under Exemption (a) in its November 20, 2025 production. The Department is reminded that for Exemption (a) to apply, a statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Accordingly, the Department must clarify which statute(s) permit it to redact and withhold the responsive reports. Further, the Department must explain with specificity how Exemption (a) applies to the redacted and withheld reports. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). It should be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Ms. Ferguson with a response to the 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 must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Ferguson may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Grace Ferguson