Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20202244)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 2, 2020 SPR20/2244 Mark Saloio Chief Tisbury Police Department 32 Water Street 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 October 5, 2020, Mr. Saltzberg requested “all internal investigation reports or other internal investigation documentation generated between 2009 and 2014 that are focused on [an identified] … former officer in the Tisbury Police Department related to an incident that occurred at [a named address] on July 23, 2011.” 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). The Department’s October 16, 2020 Response In its October 16th response, the Department replied “that after review, we have no records responsive to your …request.” The Department further states, “ … the Department can state with certainty that [the named] Officer was not the subject of any internal investigation resulting from the incident at [named address].” The Town stated, “ … a thorough search [was done] and no 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 SPR20/2244 Page 2 December 2, 2020 records exist in Town hall or Council on Aging regarding your request. These are the only other places [known] where there are stored files.” Current Appeal In his appeal, Mr. Saltzberg states, “it’s curious that a 2013 MCAD finding … indicated that [the named officer] was issued a letter of reprimand.” Upon review of the MCAD Investigative Finding, it discloses, “[the named] officer was given a written reprimand regarding the July 2011 incident.” The Finding further states, “[w]hile [the named] officer aka Complainant's initial grievance of his letter of reprimand was denied by the Town Administrator, … the Board of Selectmen later allowed the grievance in January 2012 and removed the letter from Complainant's file as a good will gesture towards Complainant.” Despite the Department’s response, it remains unclear if the Department possesses the record as requested. The Department must clarify whether the record existed and was permissibly destroyed. 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 Salzberg