Jesko, Jackie v. Boston, City of - Police Department (SPR 20260502)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 24, 2026 SPR26/0502 Christine O’Donnell, Esq. Records Access Officer Boston Police Department 1 City Hall Square Boston, MA 02201 Dear Attorney O’Donnell: I have received the petition of Jackie Jesko 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 January 21, 2026, Ms. Jesko requested “a recording of a call made by [an identified individual] for police assistance in investigating a person[.]” The Department responded twice on January 21, 2026. Unsatisfied with the Department’s responses, Ms. Jesko petitioned this office and this appeal, SPR26/0502, 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

Christine O’Donnell, Esq. SPR26/0502 Page 2 February 24, 2026 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. Jesko contends: I understand that the underlying legal matter is now closed (Commonwealth v. Hewitt, 2384CR00555). Now that the investigation has concluded, I respectfully request the Department reconsider how disclosure of the 911 audio would interfere with any ongoing investigative efforts. While § 97D protects records of active criminal investigations, its application is not unlimited or perpetual. Once a case is closed, records are not automatically exempt absent a specific showing of continuing harm or statutory prohibition. The Department’s January 21st Responses On January 21, 2026, the Department acknowledged receipt of Ms. Jesko’s request and assigned reference number B000225-012126. Later on January 21st, the Department stated that it withheld certain records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Department cited G. L. c.41, § 97D as the basis for withholding the requested records. 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.”

Christine O’Donnell, Esq. SPR26/0502 Page 3 February 24, 2026 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. The Department cites G. L. c.41, § 97D, which 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 ..., G. L. c. 41, § 97D. In its response, the Department stated: The Department is denying the remainder of your request under Exemption (a) because of G. L. c.41, §97D. This statute expressly states that records of this subject matter are not public. The Department does not have discretion to release these records and is prohibited from doing so pursuant to M.G.L. c. 41, § 97D. The Department’s responses did not contain the specificity required in a denial of access to public records. Specifically, it is not clear how the withheld records constitute the type of records contemplated under G. L. c. 41, § 97D. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Jesko 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. Jesko may further appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Christine O’Donnell, Esq. SPR26/0502 Page 4 February 24, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Jackie Jesko