Rich Saltzberg v. Dukes County Sheriff's Office (SPR 20221117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 24, 2022 SPR22/1117 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); SPR22/0554 Supervisor of Records Determination (March 17, 2022); SPR22/0554 Supervisor of Records Determination (March 30, 2022). In my March 30th determination, I ordered the Office to provide Mr. Saltzberg with a supplemental response. Subsequently, an attorney for the Office responded to Mr. Saltzberg on May 11, 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. 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 SPR22/1117 Page 2 May 24, 2022 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 states that “in contrast to the lengthy arguments previously made by the DCSO general counsel as to why the requested records were exempt from disclosure, the new argument—not so much an argument as a statement—is ‘that there were no copies of Visitor Logs for the periods requested.’” Further, he contends that “it’s quite unclear why this body of evidence allegedly isn’t at hand.” The Office’s May 11th Response In its May 11, 2022 response, the Office states that “after making a diligent search, the DCSO staff discovered that there were no copies of Visitor Logs for the periods requested.” In phone conversations with this office on March 29, 2022, and May 11, 2022, an attorney for the Office further confirmed that the Office has no responsive records for the time period in question. Records Management Mr. Saltzberg’s appeal raises questions regarding the records management of the Office. Where the records may have existed at some point in time, if the Office maintains that the responsive records no longer exist, it must explain in writing whether it complied with the Public Records Law and the Agency Records Retention Schedule (Schedule) in destroying the records. See G. L. c. 66, § 10(a)(i). Please be aware, safeguards must be instituted by the Office to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 8, 13, 15. For further guidance in records management and retention, the Office may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Accordingly, the Office is ordered to provide Mr. Saltzberg with a response to the request, explaining its justification under the Public Records Law and the Schedule for destroying the records, in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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

Major Greg Arpin SPR22/1117 Page 3 May 24, 2022 pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg