Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20220594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 21, 2022 SPR22/0594 Major Susan Schofield Supervisor of Communications Dukes County Sheriff’s Office 149 Main Street 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 January 21, 2022, Mr. Saltzberg requested “any and all critical emails, letters, or other correspondence from town officials (fire chiefs, police chiefs, town administrators, select board members etc.) concerning Sheriff’s Department emergency communications systems” for a specific time period. The Office responded on February 4, 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 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 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 SPR22/0594 Page 2 March 21, 2022 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 asserts the following; The DCSO has provided an unsupported fee and by providing the records along with the fee, created a situation where the Martha’s Vineyard Times could potentially be cornered into accepting this fee. This type of response is not an acceptable record response. The DCSO should provide a breakdown of the pages responsive to this request and offer reasoning based on Massachusetts Public Records Law for charging a $100 fee. The Office’s February 4th Response In its February 4, 2022 response, the Office provides Mr. Saltzberg with a link to responsive records and a password by which to access the link. In addition, the Office states the following: Rather than holding up sending these to you while we estimate the time involved and require a prepayment, we are trusting that you will pay for all time spent over 4 hours at the rate of $25/hour. In its February 4th response, the Office has provided Mr. Saltzberg with numerous responsive records. The Office has neither denied the request, nor provided a fee estimate. Accordingly, the basis of Mr. Saltzberg’s appeal is unclear. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has been alleged. See G. L. c. 66, § 10A(a). In this case, Mr. Saltzberg is not alleging a violation of G. L. c. 66, § 10. The Office is advised that, as noted above, if there are any fees associated with a response, a written good faith estimate must be provided in accordance with G. L. c. 66, § 10(b)(viii) and 950 C.M.R. 32.07(2). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Saltzberg is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Major Susan Schofield SPR22/0594 Page 3 March 21, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg