Matthew Rocheleau v. Dracut, Town of (SPR 20210038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 22, 2021 SPR21/0038 David Chartrand Deputy Chief of Police Town of Dracut Police Department 110 Loon Hill Road Dracut, MA 01826 Dear Deputy Chief Chartrand: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Town of Dracut Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Rocheleau requested ten categories of records from the Department. Prior appeal At issue in this appeal is Mr. Rocheleau’s request for “any/all documentation describing the operation of all existing [D]epartment early-warning/intervention program(s).” The Boston Globe paid the estimate for the records regarding thirty-three (33) police officers in the early warning system. In a November 30, 2020 email, the Department informed Mr. Rocheleau that on the advice of the Town’s Legal Counsel, “[…since these documents are also in each officer’s personnel file we should not be releasing them. Even though I redacted the names of officers, [Legal Counsel] has determined that there is potential that the records could be identified as belonging to a particular officer.” The Department created a sample record showing the type of information the actual records contain. Mr. Rocheleau petitioned the Supervisor of Records (Supervisor), and the prior appeal was opened. See SPR20/2411 Determination of the Supervisor (December 17, 2020). In my December 17th determination, I ordered the Department to provide Mr. Rocheleau with a response, and produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Current appeal After the Supervisor’s December 17th determination, the Department provided Mr. Rocheleau with a December 21, 2020 response which denied his request, in its entirety, under Exemption (c). As a result, on January 7, 2021, Mr. Rocheleau petitioned the Supervisor, and the 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

Deputy Chief David Chartrand SPR21/0038 Page 2 January 22, 2021 current appeal was opened. In his petition, Mr. Rocheleau asserts, “[t]he [D]epartment’s latest response dated Dec. 21, 2020…does not provide any additional arguments that satisfy the requirements under the [P]ublic [R]ecords [L]aw for why the records can be withheld in their entirety.” Mr. Rocheleau asks the Supervisor to order the Department to immediately provide the records. In camera inspection In order to facilitate a determination as to the applicability of the Department’s first clause of Exemption (c) claim to withhold the records in their entirety, the Department 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 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. Conclusion Accordingly, the Department is ordered to provide this office with an un-redacted copy of the records at issue for in camera inspection without delay. The Department may provide this office with an explanation of its position regarding the applicability of its exemption claims to the responsive records. 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.

Deputy Chief David Chartrand SPR21/0038 Page 3 January 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau, Boston Globe