Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20202209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 23, 2020 SPR20/2209 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 appealing the response of the Tisbury Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 13, 2020, Mr. Saltzberg requested “. . . any and all internal investigation records focused on Max Sherman of the Tisbury Police Department.” The Department responded on August 15, 2020, indicating there are no responsive records. Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office and this appeal, SPR20/2209, 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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 SPR20/2209 Page 2 November 23, 2020 custodian must provide the responsive records. Current appeal In its August 15, 2020 response, the Department asserts that it “. . . ha[s] no records pertaining to this request.” In his appeal petition, Mr. Saltzberg references a similar request to the Department on January 21, 2020, where he requested “. . . any and all internal investigation reports, internal investigation notes or other internal investigation documentation focused on Officer Max Sherman between 2015 and 2020.” This January 21st request was the subject of a previous appeal. See SPR20/565 Determination of the Supervisor of Records (April 2, 2020). SPR20/565 was closed after the Department notified this office of its intention to provide Mr. Saltzberg with a supplemental response. Subsequently, on April 9, 2020, the Department provided a response. In its April 9th response, the Department explained that “. . . while the [Department] has responsive records in the form of employee statements and personal notes taken by a former employee relative to Officer Sherman, the [Department] does not have in its possession, custody, or control a completed ‘internal investigation’ where Officer Sherman is the subject matter. A formal investigation of Officer Sherman was never initiated by the Department.” The Department asserted that the above referenced records are exempt pursuant to Exemptions (a), (c), and (e) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (e). Based on the Department’s April 9, 2020 response indicating it possesses “. . . records in the form of employee statements and personal notes taken by a former employee . . . [,]” it is unclear why the Department states in its August 15th response that it “. . . ha[s] no records pertaining to this request.” As such, I find the Department must confirm whether it possesses any records responsive to Mr. Saltzberg’s request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). 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 ten (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.

Chief Mark Saloio SPR20/2209 Page 3 November 23, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg