Melissa Hanson v. Worcester, City of (SPR 20211135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 18, 2021 SPR21/1135 Janice E. Thompson, Esq. Assistant City Solicitor City of Worcester Law Department 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Thompson: I have received the petition of Melissa Hanson of Masslive appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Hanson requested: “[a]ny reports, evidence photos and 911 call recordings related to the officer-involved shooting of [an identified person] on April 21, 2021.” In an April 30, 2021 response, the City’s Records Access Officer, Michael Vigneux denied Ms. Hanson’s request, in its entirety, under Exemption (f) of the Public Records Law. The City asserts that the matter is under active investigation, and disclosure of information contained within the requested records would compromise the integrity of the investigation and impede law enforcement from effectively carrying out its duties. Dissatisfied with the response, Ms. Hanson 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 “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 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

Janice E. Thompson, Esq. SPR21/1135 Page 2 May 18, 2021 exemption or exemptions upon which the withholding is based…”); 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). In camera inspection In order to facilitate a determination as to the applicability of the City’s Exemption (f) claim to withhold all the records in its possession, and in their entirety, pertaining to Ms. Hanson’s request, the City 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. The City may provide the Supervisor with a further explanation of its position regarding the City’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 City is ordered to provide this Office with a copy of the un-redacted records without delay.

Janice E. Thompson, Esq. SPR21/1135 Page 3 May 18, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Melissa Hanson, Masslive Michael Vigneux