Walt Buteau v. Seekonk, Town of - Police Department (SPR 20181118)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 7,2018 SPR1811118 Chief Craig A. Mace Chief of Police Town of Seekonk Police Department 500 Taunton Avenue Seekonk, MA 02771 Dear Chief Mace: I have received the petition of Walt Buteau, an Investigative Report for WPRI-TK appealing the response of the Town of Seekonk Police Department (Department) to a request for public records. G. L. c. 66, 5 l0A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Buteau requested a copy of the records of a 20 13 internal investigation of an identified former employee, identified as 13-2-IA. Prior appeals The responsive 20 13 internal investigation report was the subject of a prior appeal, including a request for reconsideration, from the Department, of the Supervisor of Public Records' (Supervisor) determination. See SPR181701 Determinations of the Supervisor (May 25, 2018 and July 5,2018 ). In my May 25thd etermination, I found that the Department did not meet its burden of specificity in withholding the investigation report in its entirety pursuant to G. L. c. 41, 5 97D as it operates through Exemption (a), the privacy clause of Exemption (c) and Exemption (f). I ordered the Department to provide an un-redacted copy of the record(s) to this office for in camera inspection. On June 12,2018 , in lieu of providing this office with a copy of the un-redacted internal investigation records for in camera inspection, as ordered by the Supervisor on May 25th,t he Department sent a letter asking the Supervisor for reconsideration. The Department's June 12'~ letter asking for reconsideration sought to withhold the internal investigation records, in their entirety, under G. L. c. 41, 5 97D as it operates through Exemption (a). In my July 5th determination regarding the Department's request for reconsideration and after another careful review, I found that the Department had not met its burden to withhold the internal affairs investigation records under Exemption (a), in their entirety, and I declined to reverse my May 25thf inding. Therefore, I ordered the Department to review the internal affairs investigation 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

Chief Craig A. Mace Page 2 August 7,2018 records, redact where necessary and provide Mr. Buteau with the redacted records. SPR181701 Determination of the Supervisor (July 5,2018 ). Current appeal On July 24th,M r. Buteau received the twenty (20) page internal affairs investigation report, and subsequently petitioned the Supervisor for another appeal, requesting that the Supervisor obtain a less redacted version of the report for him. As a result, this office opened the current appeal, SPR1811118. 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, 5 lOA(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, fj lO(b)(iv) (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 see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 1 1 (1 995) (custodian has the burden of establishing the applicability of an exemption). In camera inspection of internal affairs recordts) At this time, in order to facilitate a final determination as to the applicability of the exemption claims made by the Department in redacting the 201 3 internal affairs investigation report, I request that the Department provide this office with an un-redacted copy of the responsive internal affairs investigation records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the withheld portions 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, 5 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (198 1) (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 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;

Chief Craig A. Mace Page 3 August 7,201 8 therefore, any request made to this office for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). Furthermore, 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. The Department may provide this office with an explanation of its position regarding the applicability of an exemption or exemptions to the redacted portions of the responsive records that were provided to Mr. Buteau on July 24t11H. owever, 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. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the internal affairs investigation records without delay. Sincerely, u Rebecca S. Murray Supervisor of Records cc: Walt Buteau Janelle Austin, Esq., KP Law, P. C.