Rich Saltzberg v. Cape & Islands District Attorney's Office (SPR 20211819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 6, 2021 SPR21/1819 Ms. Tara Miltimore, Esq. Cape and Islands District Attorney’s Office 3231 Main Street P. O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Mr. Rich Saltzberg appealing the nonresponse of the Cape and Islands District Attorney’s Office (Office) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Saltzberg requested “[a]ny communication to the Tisbury Police Department or the Massachusetts State Police about the preservation of evidence. More specifically, any email, letter, fax, or other modality of communication, that grants permission to destroy (or dispose of) any type of evidence pertaining to the 2011-2012 Dukes County cases of David Thrift,” “[a]ny request by either the Massachusetts State Police or the Tisbury Police Department to destroy or mark for destruction or disposal any type of evidence pertaining to the 2011-2012 Dukes County cases of David Thrift,” and “[a]ny communication or document in which the quality or professionalism of Tisbury Police Department evidence gathering/preservation relative to the 2011-2012 Dukes County cases of David Thrift are questioned or deemed wanting.” Claiming to not yet have received a response, Mr. Saltzberg petitioned this office and this appeal 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 establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Tara Miltimore, Esq. SPR21/1819 Page 2 August 6, 2021 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. Conclusion Despite being notified of the opening of this appeal from a member of the Public Records Division staff, no response has been provided. Accordingly, the Office is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, .fJ .d ~ ~ .. - ~ ~. . . , er ~ Rebecca S. Murray Supervisor of Records cc: Mr. Rich Saltzberg