Rich Saltzberg v. Edgartown, Town of - Police Department (SPR 20200727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2020 SPR20/0727 James Hagerty Town Administrator Alternate Public Records Access Officer Town of Edgartown 70 Main Street P.O. Box 5158 Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically on February 12th, Mr. Saltzberg requested, “any and all internal investigations records regarding alleged sexual harassment by any police officer in the Edgartown Police Department [and] internal investigation records specifically generated between Jan 1 2015 and Feb 1 2020.” Previous Appeal This request was the subject of a previous appeal. See SPR20/0614 Determination of the Supervisor of Records (April 10, 2020), 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). 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

James Hagerty SPR20/0727 Page 2 May 14, 2020 The Town’s April 30th response In its April 30th response, the Town provided a supplemental response and claimed that the report is personnel information and exempt from disclosure under Exemption (c), G. L. c. 4, § 7(26) (c). The Town provided analysis asserting that the “report was not written as part of an ‘internal affairs’ investigation … and should be considered exempt under the Worcester’s Telegram court’s analysis.” See Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass Appt. Ct. 1, 10 (2003). Unsatisfied with the response, Mr. Saltzberg appealed and SPR20/0727 was opened as a result. In camera inspection In order to facilitate a determination as to the applicability of the Town's claims under Exemption (c) to withhold the records in their entirety, the Town must provide this office with un- redacted copies of the responsive records for in camera inspection. 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. 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Town is ordered to provide this office with an un-redacted copies of the responsive records for in camera inspection without delay.

James Hagerty SPR20/0727 Page 3 May 14, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: James Hagerty