Brian Keaney v. Dedham, Town of - Police Department (SPR 20192310)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 29, 2019

SPR19/2310 Officer Ron Pucci Dedham Police Department 600 High Street Dedham, MA 02026

Dear Officer Pucci:

I have received the petition of Brian Keaney appealing the response of the Dedham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Keaney requested a report regarding an identified incident. The Department responded on October 23, 2019 by denying access to the responsive record.

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 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(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 October 23" response the Department asserts “[i]t was a medical emergency which cannot be released.” Based on his appeal petition, it appears Mr. Keaney would accept copy of the report that has names redacted.

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

Officer Ron Pucci SPR19/2310 Page 2 ) November 29, 2019

In camera inspection

Based on its October 23 response, I find the Department has not met its burden in responding to this request. See G. L. c. 66, § 10(b)(iv) (a records custodian is required to provide a response that identifies “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).” Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); 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).

In order to facilitate a determination as to the applicability of an exemption to withhold the record in its entirety, the Department must provide this office with an unredacted copy of the record at issue for an in camera inspection without delay. 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 record. See 950 C.M.R. 32.08(4).

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. 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.

Conclusion

Accordingly, the Department is ordered to provide this office with an unredacted copy of the record at issue for in camera inspection without delay. The Department 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 —

Officer Ron Pucci SPR19/2310 Page 3 November 29, 2019

inspection, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely,

Rileeea

Rebecca S. Murray Supervisor of Records

ce: Brian Keaney