Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20210048)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 22, 2021 SPR21/0048 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). On December 14, 2020, Mr. Saltzberg requested “any and all police reports and supplemental police reports regarding incidents at [named address] on July 23 and 24, 2011.” The Department provided a response on December 28, 2020, including responsive records withheld or redacted pursuant to Exemptions (a) and (c). Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office, and SPR21/0048 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. 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 SPR21/0048 Page 2 January 21, 2021 The Department’s December 28th Response In its December 28th response, the Department states “[t]he records requested contain information that by Law is considered confidential and unable to be publically disclosed due to the reasons outlined below. As a result, such information must be withheld/redacted by our agency under the law.” The Department cites Exemption (a) and (c). For its Exemption (a) claim, the Department cites G. L. c. 66, § 10B; G. L. c. 119, § 60A; and G. L. c. 41, § 97D. The Department cites these statutes for victim information; information regarding rape and sexual assault; and juvenile information, respectively. For its Exemption (c) claim, the Department states “[t]he records requested contain information which, if disclosed, would constitute an unwarranted invasion of personal privacy. Such information contains intimate details and the privacy interests involved outweigh the public interests in the disclosure of that information.” In his appeal, Mr. Saltzberg indicates “[w]ith the exception of redactions for the names of minors, domestic assault victims, and sexual assault victims, most redactions in Det. Mark Santion’s report from the Dukes County Jail, which begin on the bottom of page 29 and continue through to most of page 36, are difficult to fathom. Det. Mark Santon recounts interviews with Joseph D’Amelio and Hans Johnson in those pages. In its cover letter, the Department failed to cite any exemptions that would be applicable to these two individuals in the context they appear in Det. Santon’s report.” Mr. Saltzberg further indicates “…the police reports provided are missing the evidence intake forms that are normally a component of such reports.” 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, 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."

Mark Saloio SPR21/0048 Page 3 January 21, 2021 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 and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under 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 exemption 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). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; - se - e -al-so- -D-o-e -v.- R-e-g-is-tr-a-r -of- M--o-to-r -V-e-hi-c-le-s, 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 exemption 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.

Mark Saloio SPR21/0048 Page 4 January 21, 2021 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, any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Although the Department states that “information must be withheld/redacted by our agency under the law” it is unclear what record(s) responsive to Mr. Saltzberg’s request it is withholding, and if the Department is withholding evidence intake forms. Therefore, the Department must identify the any 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. The Department must clarify which exemption is applicable to each redaction, as well as provide specific reasons for the redaction under the cited exemption. 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