Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20210160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2021 SPR21/0160 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.” Previous appeal This request was the subject of a previous appeal. See SPR21/0048 Determination of the Supervisor of Records (January 22, 2021). In my January 22nd determination, I found the Department had not met its burden of specificity in claiming Exemptions (a) and (c) to redact and/or withhold the requested records. The Department was ordered to provide Mr. Saltzberg with a response to the request, in a manner consistent with the order, the Public Records Law, and its Regulations. On the same day as the determination, the Department provided a response to Mr. Saltzberg. Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office and this appeal, SPR21/0160, was opened as a result. Subsequent to the opening of this appeal, the Department provided a response to Mr. Saltzberg on February 2, 2021. Mr. Saltzberg responded on February 5, 2021, addressing the Department’s February 2nd response. 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 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 SPR21/0160 Page 2 February 8, 2021 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. Current Appeal In its January 22nd response, the Department cites G. L. c. 41, § 97D for redactions made to an incident report that Mr. Saltzberg is appealing. 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, 377 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. G. L. c. 41, § 97D provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section

Mark Saloio SPR21/0160 Page 3 February 8, 2021 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim- witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276. . . . G. L. c. 41, § 97D. In its January 22nd response, the Department explains “…the records sought are rife with allegations of rape and sexual assault which are exempt from disclosure pursuant to G.L. c. 41, § 97D via Exemption (a). Furthermore, the underlying incident was a very public event in the Town and as such the intimate details of the crime, including the identity of the family members are generally known by Mr. Saltzberg and members of the Tisbury community…” An incident report is the type of report contemplated by G. L. c. 41, § 97D. Whereas the report is a record restricted from disclosure by the Legislature under G. L. c. 41, § 97D, as it operates through Exemption (a), I find it unnecessary to opine on the Department’s Exemption (f) claim. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg