Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20220554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 17, 2022 SPR22/0554 Major Greg Arpin Assistant Deputy Superintendent of Operations Dukes County Sheriff's Office 149 Main Street Edgartown, MA 02539 Dear Major Arpin: 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 November 30, 2021, Mr. Saltzberg requested “any and all visitor logs for the Dukes County Jail from July 15, 2011 to December 15, 2011.” Previous Appeals This request was the subject of previous appeals. See SPR21/3127 Supervisor of Records Determination (December 9, 2022); SPR21/3387 Supervisor of Records Determination (January 13, 2022). In my January 13th determination, I found that the Office had not met its burden to withhold the responsive records in their entirety. Subsequently, the Office responded to Mr. Saltzberg on January 20, 2022. 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 agency or municipality 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. Att’y 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 Greg Arpin SPR22/0554 Page 2 March 17, 2022 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 Office’s January 20th Response In its January 20, 2022 response, and in a letter to this office and Mr. Saltzberg on March 14, 2022, the Office reiterates its claims for withholding responsive records pursuant to Exemptions (a), (c), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (a), (c), and (n) claims made by the Office to withhold 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 Greg Arpin SPR22/0554 Page 3 March 17, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg