Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20212743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 1, 2021 SPR21/2743 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. Previous Appeals This request was the subject of previous appeals. See SPR21/1588 Supervisor of Records Determination (July 7, 2021); SPR21/1689 Supervisor of Records Determination (July 22, 2021); SPR21/1689 Supervisor of Records Determination (October 1, 2021). In my July 22nd determination, I ordered the Office to provide this office with an unredacted copy of a representative sample of the responsive records for in camera inspection. The Office provided the records and I would like to thank the Office for its cooperation. In my October 1st determination, I ordered the Office to provide a supplemental response. Subsequently, the Office provided Mr. Saltzberg with a written response on October 16, 2021. Unsatisfied with the 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 SPR21/2743 Page 2 November 1, 2021 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. Att’y 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. Current Appeal In his appeal petition, Mr. Saltzberg specifies that he does “not contest the redaction of victims’ names, medical data, and ‘the name of any witness or any good Samaritan reporting a crime.’” Further, he clarifies that he has “no expectation of receiving 911 calls where a crime is being reported.” Mr. Saltzberg argues that the Office “has not illustrated an application of the balancing test to these records per Exemption (c), nor has [the Office] illustrated how Exemption (f) would apply.” In addition, he provides several specific examples of communications that he believes would not be subject to withholding pursuant to Exemption (a). The Office’s Responses In its October 16, 2021 response, and in previous responses, the Office claims to withhold responsive records pursuant to Exemptions (a), (c), and (f) of the Public Records Law. See G. L. c. 4, §7 (26)(a), (c), and (f). 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.”

Major Susan Schofield SPR21/2743 Page 3 November 1, 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. The Office first cites G. L. c. 41, § 97D, which provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 G. L. c. 41, § 97D. The Office also cites G. L. c. 41, § 98F, which provides in relevant part: Each police department and each college or university to which officers have been appointed pursuant to section 63 of chapter 22C shall make, keep and maintain a daily log, written in a form that can be easily understood, recording, in chronological order, all responses to valid complaints received, crimes reported, the names, addresses of persons arrested and the charges against such persons arrested. All entries in said daily logs shall, unless otherwise provided in law, be public records available without charge to the public during regular business hours and at all other reasonable times; provided, however, that the following entries shall be kept in a separate log and shall not be a public record nor shall such entry be disclosed to the public, or any individual not specified in section 97D: (i) any entry in a log which pertains to a handicapped individual who is physically or mentally incapacitated to the degree that said person is confined to a wheelchair or is bedridden or requires the use of a device designed to provide said person with mobility, (ii) any information concerning responses to reports of domestic violence, rape or sexual assault, (iii) any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A, or (iv) any entry concerning the arrest of a person

Major Susan Schofield SPR21/2743 Page 4 November 1, 2021 who has not yet reached 18 years of age. G. L. c. 41, § 98F. Finally, the Office cites G. L. c. 209A, § 8, which provides in relevant part: The records of cases arising out of an action brought under the provisions of this chapter where the plaintiff or defendant is a minor shall be withheld from public inspection except by order of the court; provided, that such records shall be open, at all reasonable times, to the inspection of the minor, said minor’s parent, guardian, attorney, and to the plaintiff and the plaintiff's attorney, or any of them. The plaintiff’s residential address, residential telephone number and workplace name, address and telephone number, contained within the court records of cases arising out of an action brought by a plaintiff under the provisions of this chapter, shall be confidential and withheld from public inspection, except by order of the court, except that the plaintiff’s residential address and workplace address shall appear on the court order and accessible to the defendant and the defendant’s attorney unless the plaintiff specifically requests that this information be withheld from the order. All confidential portions of the records shall be accessible at all reasonable times to the plaintiff and plaintiff’s attorney, to others specifically authorized by the plaintiff to obtain such information, and to prosecutors, victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victim’s counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, and law enforcement officers, if such access is necessary in the performance of their duties. The provisions of this paragraph shall apply to any protection order issued by another jurisdiction, as defined in section 1, that is filed with a court of the commonwealth pursuant to section 5A. Such confidential portions of the court records shall not be deemed to be public records under the provisions of clause twenty-sixth of section 7 of chapter 4. G. L. c. 209A, § 8. Under Exemption (a), in its June 23, 2021 response, the Office argues 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

Major Susan Schofield SPR21/2743 Page 5 November 1, 2021 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. Exemption (c) Exemption (c) applies to: 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). Medical information that is of a personal nature and relates to a specifically named individual may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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. 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). When analyzing a privacy claim, there is 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 in a law abiding and efficient manner. Id. at 292. Under Exemption (c), the Office argues that “[i]t may be significant that the 911 recording has not been used in any trial, and therefore not only has there been no court ruling on whether it is a public record, but its privacy has not been relinquished.” The Office further contends that “[t]he present case seems to fall squarely in line with what the federal courts have determined to be things of a highly personal nature and not subject to disclosure.”

Major Susan Schofield SPR21/2743 Page 6 November 1, 2021 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Bougas 371 Mass at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. In its October 16th response, the Office states the following: Were it not for the fact that the audio recordings were made on an older piece of equipment for which no redaction is possible, [the Office] might consider whether [it] could provide [Mr. Saltzberg] with redacted sections of the recordings [he has] requested. However, since this is not possible, the best [the Office] can do is give [him] a redacted version of the police report that is involved in the material [he] requested.

Major Susan Schofield SPR21/2743 Page 7 November 1, 2021 In Camera Inspection Upon in camera inspection, and in conjunction with the Office’s responses, I find that although portions of the records may fall within the above claimed exemptions, the Office has not met its burden to withhold responsive records in their entirety. As to the 911 call recordings which involve the reporting of alleged crimes, Mr. Saltzberg has indicated he does not expect to receive such records. As to the business call and radio transmission recordings, to the extent the records contain medical information, and the identifying information of voluntary witnesses, the Office may withhold such portions from disclosure. However, the Office has not shown that the records, in their entirety, are the types of records contemplated under G. L. c. 41, § 97D, or G. L. c. 41, § 98F, or G. L. c. 209A, § 8. Further, the Office has not shown how the records, in their entirety, are details of a highly personalized nature. Additionally, the Office has not established why the recordings could not be redacted to preserve the identity of victims and voluntary witnesses. Conclusion Accordingly, the Office is ordered to review the records, redact where necessary, and provide Mr. Saltzberg with non-exempt portions of the records, in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg