Mike Beaudet v. Somerville, City of - City Solicitor (SPR 20160580)

The Commonwealth ofMassachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams August 18, 2016 Supervisor ofR ecords SPR16/580 Mr. Jason D. Grossfield, Esq. Assistant City Solicitor City of Somerville - Law Department 93 Highland A venue Somerville, MA 02143 Dear Attorney Grossfield: I have received the petition of Mike Beaudet, an Investigative Reporter for WCVB Channel 5 Boston appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Beaudet requested copies of all internal affairs investigations regarding Alex Capobianco. The City provided Mr. Beaudet with certain of the records in a redacted format, and has withheld the balance of the records regarding the four ( 4) internal affairs investigation files. With its June 28, 2016 written response, the City provided redacted records accompanied by a three-page log listing the withheld records with the corresponding Public Records Law exemption claimed. The City has withheld records pursuant to the Criminal Offender Record Information Act (CORI) and the federal Drivers Privacy Protection Act (D.P.P.A.) under Exemption (a), both clauses ofExemption (c), Exemption (f), Exemption (o) and the common law attorney-client privilege. Mr. Beaudet appealed. In a telephone conversation with an attorney on my staff, Mr. Beaudet explained that the records provided are so heavily redacted that there is little remaining informational value. Mr. Beaudet also objected to the number of exemptions cited by the City. The Public Records Law Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly definedto include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Jason D. Grossfield, Esq. SPR16/580 Page2 August 18, 2016 City's response; in camera review I commend the City for providing a detailed log explaining with great specificity the records withheld under particular exemptions in the Public Records Law, the index and its June 28 written response does not provide the level of specificity to enable this office to render a determination on the public nature of the records. It is difficult for me to determine based upon a review of this response as well as the redacted copy of the record provided how the exemptions specifically apply to each portion of responsive records. Accordingly, I hereby assert my authority to order an in camera review of the responsive records to determine the applicability of the exemptions. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. 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. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). 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. Accordingly, the City is hereby ordered to provide this office with an umedacted copy of the responsive records without delay. The City may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. ervisor of Records cc: Mr. Mike Beaudet