Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20201914)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 21, 2020 SPR20/1914 James D. Neville Superintendent Dukes County Sheriff’s Office 149 Main Street P.O. Box 252 Edgartown, MA 02530 Dear Superintendent Neville: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of Dukes County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Saltzberg requested incarceration records or transfer records for an identified person who would have been in the custody of the Dukes County Sheriff’s Office in or around June of 2010. In a July 14, 2020 response, the Office denied Mr. Saltzberg’s request in its entirety pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a) of the Public Records Law. Unsatisfied with this response, Mr. Saltzberg petitioned the Supervisor of Records (Supervisor) and this appeal was opened. In his petition, Mr. Saltzberg contends, “CORI does not apply in this case because the subject of the record(s) was found in contempt of court [by an identified judge] for an outburst she made after the defendant had been sentenced. She was deposited in jail without arraignment or a hearing. This imprisonment occurred by means of the inherent contempt power of the court and not through any criminal process.” Therefore, Mr. Saltzberg concludes that the CORI Act does not apply. 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). 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

Sup. James D. Neville SPR20/1914 Page 2 October 21, 2020 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) (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 exemption or exemptions upon which the withholding is based…”); 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. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. CORI Act CORI is defined as: Records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such

Sup. James D. Neville SPR20/1914 Page 3 October 21, 2020 information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). In its July 14th response, the Office states, “[t]he law does not distinguish between incarceration for a crime or for contempt of court. Similarly, the words ‘other judicial proceedings’ certainly contemplate a broader reading than [Mr. Saltzberg’s] request asserts.” Despite the Office’s July 14th response, it is unclear what records the Office has in its possession, and how all of those records fall under the CORI Act. Specifically, it is unclear how any or all of the records are “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. In camera inspection In order to facilitate a determination as to the applicability of the Office’s claim that the CORI Act as it operates through Exemption (a) allows the Office to withhold all the records in its possession, and its entirety, pertaining to Mr. Saltzberg’s request, the Office must provide the Supervisor with an un-redacted copy of these records for an in camera inspection. 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 the Supervisor that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. The Supervisor and the Public Records Division are not the custodians of records examined in camera; therefore, any request made to the Supervisor or the Public Records Division for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). The Supervisor has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to the

Sup. James D. Neville SPR20/1914 Page 4 October 21, 2020 Supervisor upon a promise of confidentiality. The Supervisor 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 Office may provide the Supervisor with a further explanation of its position regarding the Office’s denial to provide the responsive records and the applicability of the exemption claim. Please be advised that, unlike the materials provided for in camera 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. Conclusion Accordingly, the Office is ordered to provide the Supervisor with an un-redacted copy of the records responsive to Mr. Saltzberg’s request for in camera inspection within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg, Martha’s Vineyard Times