Geraldine Houde v. Bellingham, Town of - Police Department (SPR 20210305)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2021 SPR21/0305 Gerard L. Daigle Chief of Police Town of Bellingham Police Department 30 Blackstone Street Bellingham, MA 02019 Dear Chief Daigle: I have received the petition of Geraldine Houde appealing the response of the Bellingham Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 20, 2021, Ms. Houde requested “. . . the date of the very first interview done with [an identified person] in regards to [an identified person] of the Town as well as the dates of all subsequent interviews or contacts made between the [Department] that include [six identified persons].” The Department denied Ms. Houde’s request under Exemption (f) of the Public Records Law, asserting that the records relate to a murder investigation that is open and unsolved. It is my understanding that the murder was committed on December 8, 1978 and the investigation is led by the Norfolk County District Attorney’s Office. As a result, Ms. Houde petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (written response must “30 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…”); 950 C.M.R. 32.06(3); see 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 Gerard L. Daigle SPR21/0305 Page 2 February 22, 2021 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). In camera inspection In order to analyze the legal basis of the Department’s current position, an in camera review of an un-redacted copy of a representative sample of the responsive records, including a timeline of current activity on the murder investigation will facilitate a determination as to the applicability of the Department’s Exemption (f) claim to withhold responsive records. 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. Mass. 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. The Department may provide the Supervisor with a further explanation of its position regarding the Department’s denial to provide the responsive records and the applicability of the exemption claim. 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 available to the public. Conclusion Accordingly, the Department must provide the records without delay.

Chief Gerard L. Daigle SPR21/0305 Page 3 February 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Geraldine Houde