Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20210456)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2021 SPR21/0456 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, § 10A; see also 950 C.M.R. 32.08(1). On August 13, 2020, Mr. Saltzberg requested identified internal investigation records. Previous appeal This request was the subject of a previous appeal. See SPR20/2209 Determination of the Supervisor of Records (November 23, 2020). In my November 23rd determination, I directed the Department to confirm whether it possesses any records responsive to Mr. Saltzberg’s request. The Department provided a response on November 30, 2020, denying access to responsive records pursuant to Exemptions (a), (c), and (e) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (e). Unsatisfied with the Department’s response, Mr. Saltzberg petitioned this office and this appeal, SPR21/0456, was opened as a result. While this appeal was pending, the Department provided a supplemental response on February 26, 2021. 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 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 Mark Saloio SPR21/0456 Page 2 March 9, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s November 30th and February 26th responses In its November 30, 2020 response, the Department states that it “. . . was unable to locate any documentation by either former Chief . . . or a designee of the Chief that included an original complaint form, witness statements, statements from Officer Sherman, a summary of the evidence gathered, or a statement from the investigating officer as to whether charges against Officer Sherman had been validated, unsustained, or unfounded.” However, the Department indicates that it “. . . did locate two statements from Town employees that were provided to the former lieutenant, as well as the lieutenant’s personal notes, which he reportedly reduced to type- written format, which suggest that he engaged in a clandestine investigation of Officer Sherman, on behalf of his friend and former colleague, without the Chief’s authorization or assent, and without following the Police Department’s policy and procedure relative to the conducting of internal investigations.” The Department asserts that these records are being withheld pursuant to Exemptions (a), (c), and (e). 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 Att’y 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.”

Chief Mark Saloio SPR21/0456 Page 3 March 9, 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. Under Exemption (a), the Department states, “[t]he provisions of G.L. c. 214, §1B and G.L. c. 268A permit withholding of responsive records through operation of exemption (a) in this instance. This statute affords individuals a right against the unreasonable, substantial or serious interference with their privacy.” 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y 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; see also Doe v. Registrar of Motor Vehicles, 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

Chief Mark Saloio SPR21/0456 Page 4 March 9, 2021 in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Department explains that although it “. . . has records that purport to suggest that Officer Sherman was the subject of an internal investigation, no such investigation was ever initiated by the Department pursuant to the Department’s internal investigation policy and procedure. Since an ‘investigation’ was never formally initiated and/or completed and the allegations, if initiated, at best, remain ‘unresolved,’ in that no formal action was ever formally taken by the Police Department, release of the responsive records implicates Officer Sherman’s privacy rights, which far outweigh the public’s right to the documents.” The Department contends that “[r]elease of mere allegations without a disposition of those allegations can result in innuendo and speculation as to the subject’s reputation and professional competence. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 292 (1979). Such speculation can adversely affect the subject’s standing in the community as well as their ability to obtain future employment. Id. Accordingly, where a resolution of allegations has not fully or formally occurred, as is the case here, and moreover, where a formal investigation was never even initiated, Officer Sherman has a privacy interest in such allegations, and the nature of the allegations may be considered an intimate detail highly personal in nature. . . .” Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with

Chief Mark Saloio SPR21/0456 Page 5 March 9, 2021 others and were not part of such a governmental file.” Under Exemption (e), the Department explains that from its “. . . review of records retrieved and inspected to determine their responsiveness to your request, the former lieutenant’s notes were not generated as part of a formal Department investigation and appear to record his personal efforts to conduct a concealed investigation of Officer Sherman, outside of the Department’s investigation procedure and without providing proper notice to Officer Sherman or providing him with due process. Upon review and examination, the notes were not shared with other employees, the notes document individual steps he took against Officer Sherman on behalf of a former employee of the Department, and they were not part of an official investigation file maintained by the Department. As such, the records are being withheld pursuant to Exemption (e).” In camera inspection In order to facilitate a determination as to the applicability of the exemption claims made by the Department to withhold responsive records, in their entirety, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the 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 this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office 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. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of

Chief Mark Saloio SPR21/0456 Page 6 March 9, 2021 the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg