Francis McCue v. Rockland, Town of - Police Department (SPR 20222129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2129 Nicholas P. Zeoli Operations Lieutenant Rockland Police Department 490 Market Street Rockland, MA 02370 Dear Lieutenant Zeoli: I have received the petition of Francis McCue appealing the response of the Rockland Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 8, 2022, Mr. McCue requested “a copy of the recorded [call requesting] a welfare check from the [Department from an identified person] to [an identified address in the Town] on 08-02-2022…” Prior appeal The requested record was the subject of a prior appeal. See SPR22/1908 Determination of the Supervisor of Records (Supervisor) (August 31, 2022). On August 12, 2022, the Department denied the request in its entirety under Exemption (c) of the Public Records Law, as medical information. As a result, Mr. McCue petitioned the Supervisor, and the prior appeal was opened. In my August 31st determination, I found the Department may permissibly withhold such portions of the record under Exemption (c) as medical information. However, it is unclear how statements from the dispatcher within the recorded telephone call, date, time of dispatch, time arrived or time closed, may be withheld as medical information. I ordered the Department to clarify this issue, and provide Mr. McCue with a response. the Department provided a response on September 12, 2022. Unsatisfied with the Department’s response, Mr. McCue petitioned this office and this appeal, SPR22/2129, 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 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

Lieutenant Nicholas Zeoli SPR22/2129 Page 2 September 28, 2022 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 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 September 12th response In its September 12, 2022 response, the Department informed Mr. McCue that the redacted recorded call was placed on a CD, and that he could pick it at the front desk. In addition, in an email to McCue the Department asserted, “[r]edactions to the call have been made that relate to Medical and Privacy exemptions under section C of the Public Records Law.” In Camera Inspection of the Records In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold portions of the recorded call under the Public Records Law, the Department must provide this office with the un-redacted copy and the redacted copy of the responsive recorded call 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 redacted record. 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).

Lieutenant Nicholas Zeoli SPR22/2129 Page 3 September 28, 2022 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 an un-redacted copy and the redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Mr. Francis McCue