Rich Saltzberg v. Tisbury, Town of - Police Department (SPR 20212546)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 18, 2021 SPR21/2546 Christopher Habekost Interim Police Chief Tisbury Police Department 32 Water Street P.O. Box 426 Tisbury, MA 02568 Dear Chief Habekost: I have received the petition of Rich Saltzberg 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 30, 2021, in three separate requests, Mr. Saltzberg sought “copies of all [2010, 2011, and 2012] evidence log entries for the Tisbury Police Department” Previous appeal The portion of the request regarding the 2010 evidence logs was the subject of a previous appeal. See SPR21/2354 Determination of the Supervisor of Records (September 24, 2021). SPR21/2354 was closed after this office learned that the Department provided a response on September 14, 2021. Subsequently, the Department provided an additional response on September 30, 2021. Unsatisfied with the Department’s responses, Mr. Saltzberg petitioned this office and this appeal, SPR21/2546, 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

Chief Christopher Habekost SPR21/2546 Page 2 October 18, 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. The Department’s September 14th and 30th responses In its September 14, 2021 response, the Department states that “[t]he prior ledger no longer exists in that form, we have converted our evidence inventory into a new format and only retained the last 3 years of the prior ledger per the records retention law. If you could narrow your request accordingly, we will be happy to provide you with the information you seek.” In its September 30, 2021 response, the Department clarifies that it “. . . is not withholding the evidence log, the evidence log no longer exists in the form that you requested as the information is now stored differently. I would like to suggest that if you tailor your request to a specific piece of evidence or evidence related to a specific case or incident, then we would be happy to assist you with your request.” Given that the Department indicates it is not withholding the evidence log, it is unclear whether the Department could produce the requested information in any format in which it does exist. This office encourages Mr. Saltzberg and the Department to communicate further to determine alternative ways to produce the responsive records. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). The Department must use its knowledge of the records to facilitate providing any responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion The Department is ordered to provide a response to Mr. Saltzberg in compliance with this order, the Public Records Law and its Regulations within 10 business days. If Mr. Saltzberg is not satisfied with the Department’s response, he may file an appeal within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg