Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20202194)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 24, 2020 SPR20/2194 Mark Saloio Chief of Police Tisbury Police Department 32 Water Street, P.O. 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, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on June 15, 2020, Mr. Saltzberg requested records relating to a certain internal affairs investigation. Previous Appeal This request has been the subject of previous appeals. See SPR20/1124 Determination of the Supervisor of Records (July 22, 2020). In my July 22nd determination, I found that the Department’s fee estimate had not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Department was ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Department responded on August 20, 2020, including a fee estimate of $163.52 and responsive records redacted. The fee was paid by Mr. Saltzberg. Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office, and SPR20/2194 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, § 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

Mark Saloio SPR20/2194 Page 2 November 24, 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); 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. The Department’s August 20th Response In its August 20th response, the Department states “[p]lease be advised that the records have been redacted or withheld in their entirety in accordance with the exemptions below.” The Department cites Exemption (a) and (c). For its Exemption (a) claim, the Department states “[t]he provisions of G.L.c. 214, §1B and G.L. c. 268A permit withholding of responsive records through operation of exemption (a) in this instance. This statute affords individuals a right against the unreasonable, substantial or serious interference with their privacy… the names of victims of the underlying reports have been redacted pursuant to G.L. c. 41, §97D through operation of exemption (a).” For its Exemption (c) claim, the Department cites the personnel clause stating it “relies on this clause in withholding and/or redacting any and all disciplinary documentation of the requested officers as these are separate and distinct from internal affairs records.” The Department further states “…records that are being withheld pursuant to G.L. c. 214, §1B through operation of exemption (a), as noted above, are similarly being withheld from disclosure under the second clause of exemption (c).” In his appeal, Mr. Saltzberg states “[t]he payment $162.52 was made in good faith and with the expectation a complete set of records had been delivered and that those records were devoid of unsupported redactions. Upon review of the records, they were found to be incomplete and to be redacted in an unsupported and unfathomable manner.” Mr. Saltzberg indicates “…[A]ttorney Duquette, writing on behalf of the Tisbury Police Department, provided the revised fee and referenced exemptions (a) and (c) relative to not just SPR20/1124 (Ogden), but also SPR20/1123 (Day) and SPR20/1122 (Fiske). The letter accompanied records for all three of those appeals. By not clarifying what exemptions applied to what set of records, the Tisbury Police Department made it infeasible to determine which exemptions (and their clauses) applied specifically to SPR20/1124. Furthermore, the redactions made to SPR20/1124 records have no citations or notes to indicate which exemptions apply to them.” 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

Mark Saloio SPR20/2194 Page 3 November 24, 2020 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, 3 77 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. 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 of Exemption (c) – privacy 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).

Mark Saloio SPR20/2194 Page 4 November 24, 2020 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. Burden of specificity; segregable portions The Department has not met its burden of specificity in claiming Exemptions (a) and (c) to redact and/or withhold the requested records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 ------------------------------- Mass. at 511. It is unclear if the Department identified all the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. Please be advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Although the Department states that “[t]he provisions of G.L.c. 214, §1B and G.L. c. 268A permit withholding of responsive records through operation of exemption (a) in this instance...” it is unclear what record(s) in Mr. Saltzberg’s request it is withholding. Additionally, although the Department states “…records that are being withheld pursuant to G.L. c. 214, §1B through operation of exemption (a)…are similarly being withheld from disclosure under the second clause of exemption (c),” it is unclear what record(s) in Mr. Saltzberg’s request it is withholding. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld under Exemptions (a) and (c), as well as provide specific reasons for such withholding. Further, the Department’s response did not contain the specificity required in redacting the requested records. Although the Department states “…the names of victims of the underlying reports have been redacted pursuant to G.L. c. 41, §97D through operation of exemption (a)” it is unclear which reports this applies to. In addition, for its Exemption (c) claim, although the Department states “in withholding and/or redacting any and all disciplinary documentation of the requested officers...” the Department has not identified what disciplinary documentation these Exemptions apply to. The Department must clarify which exemption is applicable to each

Mark Saloio SPR20/2194 Page 5 November 24, 2020 redaction, as well as provide specific reasons for the redaction under the cited Exemption. Please be advised, any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations 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