Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20200565)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 2, 2020 SPR20/0565 Mark Saloio Chief of Police Tisbury Police Department 32 Water Street P. 0. Box 426 Vineyard Haven, MA 02568 Dear Chief Saloio: I have received the petition of Rich Saltzberg of the Martha's Vineyard Times appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 21, 2020, Mr. Saltzberg requested" ... any and all internal investigation reports, internal investigation notes or other internal investigation documentation focused on Officer Max Sherman between 2015 and 2020." The Department responded on January 30, 2020, denying access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department's response, Mr. Saltzberg petitioned this office and this appeal, SPR20/0565, 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, § 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. 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 Mark Saloio SPR20/0565 Page 3 April 2, 2020 umeasonable, substantial or serious interference with their privacy." Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption ( c ), the Department explains that it did not " ... ever initiate[] a formal investigation into allegations of misconduct on the part of Officer Sherman. Since any 'investigation' was never formally completed and the allegation, if any, remain 'umesolved,' in

Chief Mark Saloio SPR20/0565 Page4 April 2, 2020 that no formal action was ever formally by the Town, release of the responsive records may implicate the privacy rights of the employee(s) in question." The Department asserts that "[r]elease of mere allegations without a disposition of those allegations can result in innuendo and speculation as to the subject's reputation and professional competence." The Depa1iment cites Reinstein to support its position. The Department further explains that "[s]uch speculation can adversely affect the subject's standing in the community as well as their ability to obtain future employment. ... Accordingly, where a resolution of allegations has not fully or formally occurred, the subject has a privacy interest in such allegations, and the nature of the allegations may be consi~ered an intimate detail highly personal in nature ...." Based on a conversation between a Public Records Division staff attorney and a Depaiiment representative, it is my understanding that the Depaiiment intends on providing a supplemental response to Mr. Saltzberg. Accordingly, the Department is ordered to provide Mr. Saltzberg with a response to his request in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Saltzberg may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg