Grace Ferguson v. Plymouth County Sheriff's Office (SPR 20220968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 10, 2022 SPR22/0968 Jessica L. Kenny, Esq. Deputy General Counsel Plymouth County Sheriff’s Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Kenny: I have received the petition of Grace Ferguson of WBUR appealing the response of the Plymouth County Sheriff’s Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2022, Ms. Ferguson requested records concerning “…sworn officers of the Plymouth County Sheriff's Department dating back to January 1, 2010 [including] [a]ll internal affairs cases of domestic violence, and [a]ll internal affairs cases of sexual violence, including but not limited to rape and sexual assault.” Previous Appeal This request was the subject of a previous appeal. See SPR22/0774 Determination of the Supervisor of Records (April 14, 2022). The Department responded on April 25, 2022. Unsatisfied with the response, Ms. Ferguson petitioned this office and this appeal, SPR22/0968, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 950 C.M.R. 32.06(3); see also Dist. 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

Jessica L. Kenny, Esq. SPR22/0968 Page 2 May 10, 2022 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Department’s April 25th response In its April 25th response, the Department stated, “[a]s to each statute that was cited as a reason for our withholding or redacting the records, the Public Records Law exemption that requires us to do so is Exemption (a) the Statutory Exemption. A government entity may use the statutory exemption as a basis for withholding requested materials where the exempting statute expressly states or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted … Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities.” In an earlier response dated April 1, 2022, the Department cited Exemptions (a), (c), (j), (o), (p) of the Public Records Law and attorney-client privilege to redact or withhold the requested records pursuant to the Public Records Law. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the records in their entirety, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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.

Jessica L. Kenny, Esq. SPR22/0968 Page 3 May 10, 2022 Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Grace Ferguson