Joe Sciacca v. Barnstable, Town of - Police Department (SPR 20221177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2022 SPR22/1177 Danielle L. Paradis Records/Property Supervisor Barnstable Police Department 1200 Phinney’s Lane Hyannis, MA 02601 Dear Ms. Paradis: I have received the petition of Joe Sciacca of 7NEWS WHDH-TV Boston appealing the response of the Barnstable Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2022 Mr. Sciacca requested “information regarding the stop [of a named individual], any incident report filed about this stop and any information/communication provided to the district attorney regarding this incident.” The Department responded on May 18, 2022, providing some responsive records, and withholding others. Unsatisfied with the Department’s response, Mr. Sciacca 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

Danielle L. Paradis SPR22/1177 Page 2 June 2, 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. The Department’s may 18th Response In its May 18, 2022 response, the Department states that it is withholding an updated version of an incident report, and portions of email correspondence with the district attorney regarding the incident. The Department states that the records “are being withheld pursuant to applicable exemptions in state law, including, but not limited to, G.L. c. 4, sec. 7(26). [The Department] decline[s] to identify those exemptions as [they] believe that doing so would defeat the purpose of those exemptions.” In Camera Inspection In order to facilitate a determination as to the applicability of any exemptions claimed by the Department to withhold responsive records, the Department must provide this office with un- redacted copies 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 Department’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 Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay.

Danielle L. Paradis SPR22/1177 Page 3 June 2, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joe Sciacca Karen Nober, Esq.