William C. Dudley v. Foxborough, Town of - Police Department (SPR 20191511)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 13, 2019 SPR19/1511 Chief Bill Baker Foxborough Police Department 8 Chestnut Street Foxborough, MA 0203 5 Dear Chief Baker: I have received the petition of William C. Dudley appealing the response of the Foxborough Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dudley requested "any investigative files you have regarding [identified individual] in Foxborough." The Department responded on July 24, 2019 by providing certain records and denying access to others under Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f); G. L. c. 41, § 97D; G. L. c. 66, § lOB. 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, § 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, § 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, § lO(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. Appeal In its July 24th response the Department recites the language of G. L. c. 41, § 97D and G. L. c. 66, § lOB as they operate through Exemption (a), as well as Exemptions (c) and (f). 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 Bill Baker SPR19/1511 Page 2 August 13, 2019 Despite its July 24th response, it is unclear how the records at issue may be withheld in their entirety under the exemptions cited. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In camera inspection I find that an in camera inspection of the records at issue would facilitate a determination as to the applicability of the Department's exemption claims. See 950 C.M.R. 32.08(4). After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. 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. Massachusetts 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). 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. Co11clusio11 It is my understanding that the Department provided this office with un-redacted copies of the records at issue for in camera inspection. This office will issue a determination in a manner consistent with the timeframes set out in SPR Bulletin 04-17. See https://www.sec.state. ma.us/pre/prepra/significant-interest/SPR-Bulletin-04-17-Timeframes-for-Reconsiderations-and In-Camera-Reviews .htm).

Chief Bill Baker SPR19/1511 Page 3 August 13, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: William C. Dudley