Rich Saltzberg v. Tisbury, Town of - Town Clerk (SPR 20221827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2022 SPR22/1827 Hillary Conklin Town Clerk Town of Tisbury 51 Spring Street Vineyard Haven, MA 02568 Dear Ms. Conklin: I have received the petition of Rich Saltzberg, of The Martha’s Vineyard Times, appealing the response of the Town of Tisbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 24, 2022, Mr. Saltzberg requested, any and all police-focused emails from [an identified email address] that were handed over to the Town of Tisbury, or its agents, on or about the close of [a named individual’s] term as a select board member or at a time preceding or after the close of that term. The Town provided a response on July 8, 2022. Unsatisfied with the response, Mr. Saltzberg petitioned this office and this appeal, SPR22/1827, 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 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

Hillary Conklin SPR22/1827 Page 2 August 22, 2022 also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). If there are any fees associated with a response a written, good faith estimate must be 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 Town’s July 8th Response In its July 8, 2022 response, the Town asserts that “[w]e do not hav[e] anything responsive to your request.” In light of Mr. Saltzberg’s request seeking “any and all police-focused emails from the [an identified email address] that were handed over to the Town of Tisbury, or its agents, on or about the close of [a named individual’s] term as a select board member or at a time preceding or after the close of that term[,]” it is unclear if the Town possesses records that may be responsive to his request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Mr. Saltzberg with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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 pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Rich Saltzberg, The Martha’s Vineyard Times