Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20211689)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2021 SPR21/1689 Major Susan Schofield Supervisor of Communications Dukes County Sheriff’s Office 149 Main Street, Box 252 Edgartown, MA 02539 Dear Major Schofield: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Dukes County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2021, Mr. Saltzberg requested “all records available” concerning an incident at a specified time and location. The Office responded on June 23, 2021, and again on June 24, 2021, claiming to withhold responsive records under G. L. c. 41, §§ 97D and 98F, and G. L. c. 209A, § 8. Previous Appeal This request was the subject of a previous appeal. See SPR21/1588 Supervisor of Records Determination (July 7, 2021). In my July 7th determination, I closed SPR21/1588 in light of the Office’s intent to provide a supplemental response. Subsequently, the Office provided a response on the same day. Unsatisfied with the Office’s response, Mr. Saltzberg appealed, and this case 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 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

Major Susan Schofield SPR21/1689 Page 2 July 22, 2021 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. Current Appeal In his appeal petition Mr. Saltzberg argues: The Martha’s Vineyard Times is deeply versed in the events relative to the records in question. [The] newspaper doesn’t hold the opinion that all calls, radio traffic, and CAD entries comprise an indivisible or monolithic report shielded by statute. Rather, the Martha’s Vineyard Times contends this body of records can be segregated into restricted and unrestricted categories. Mr. Saltzberg provides several examples of responsive records that he believes could be segregated, and concludes that “the Dukes County Sheriff’s Office should redact or omit where necessary and provide the Martha’s Vineyard Times with records responsive to the outstanding request.” The Office’s Responses In its June 23, June 24, and July 7, 2021 responses, the Office claims to withhold responsive records under G. L. c. 41, §§ 97D, 98F, and G. L. c. 209A, § 8. The Office thus appears to claim Exemption (a) of the Public Records Law to withhold the requested records. In its June 23, 2021 response, the Office asserts that “[t]he documents [Mr. Saltzberg is] requesting are exempt from disclosure under the State’s Public Records Law, as well as confidential under various other laws related to domestic violence and related offenses. [The Office is] unable to provide [Mr. Saltzberg] with any of the requested documents.” In its July 7, 2021 response, the Office reiterates that “[since] neither [Mr. Saltzberg] nor [the Martha’s Vineyard Times] newspaper are among those listed in the statute as having access to such records, [the Office is] precluded from sending them to [Mr. Saltzberg].” In its June 24, 2021 response, the Office provides an “itemized list of records [the Office is] withholding and what [the Office is] claiming:” 911 call(s): MGL C. 41, Section 97D and Section 98F/Chapter 209a Section 8 CAD entries: MGL C. 41, Section 97D and Section 98F/Chapter 209a Section 8 Radio traffic: MGL C. 41, Section 97D and Section 98F/Chapter 209a Section 8 Business call(s): MGL C. 41, Section 97D and Section 98F/Chapter 209a Section 8

Major Susan Schofield SPR21/1689 Page 3 July 22, 2021 In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Office to redact responsive records, the Office must provide this office with un- redacted copies of a representative sample 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 Office’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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of a representative sample of the responsive records for in camera inspection without delay.

Major Susan Schofield SPR21/1689 Page 4 July 22, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg John Collins, Esq.