Rich Saltzberg v. Cape & Islands District Attorney's Office (SPR 20222513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 14, 2022 SPR22/2513 Tara Miltimore, Esq. Cape and Islands District Attorney’s Office 3231 Main Street Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Rich Saltzberg, of The Martha’s Vineyard Times, appealing the response of the Cape & Islands District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 10, 2022, Mr. Saltzberg requested: Any and all Jan. 1, 2015 to Oct. 1, 2022 Brady requests made to the Vineyard [P]olice [D]epartments or Vineyard [T]owns and the responses to those requests. Specifically, the Martha’s Vineyard Times requests any type of correspondence from/to a Cape and Islands [A]ssistant [D]istrict [A]ttorney, or from/to other Cape and Islands District Attorney’s Office staff, sent to/received from any of the Vineyard’s six police departments or any of the Vineyard’s six towns that seeks police officer-oriented records (potentially exculpatory records) as contemplated through the Brady-Giglio lens or responses to such requests. In his October 10th request, Mr. Saltzberg requested records/correspondence specifically related to seventeen (17) identified police officers pertaining to and contemplated through the Brady-Giglio lens. On October 21, 2022, Attorney Miltimore responded, “I will need some more time. I have some emails re Day but am still searching the others.” On November 4, 2022, Mr. Saltzberg petitioned this office and this appeal was opened. In his November 4th petition, Mr. Saltzberg asserts, “the [Office] has now had 20 business days to comply with this records request but hasn’t done so. The [Office] should provide the requested records or provide an answer as to why they have failed to do so…” The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Tara Miltimore SPR22/2513 Page 2 November 14, 2022 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) (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. 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. Timeliness of providing responsive records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Mr. Saltzberg’s request was submitted on October 10, 2022, and the Office responded on October 21st, indicating it required more time to respond. However, to date the Office has not provided any of the responsive records. As such, I find the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). It is unclear why the Office has not provided Mr. Saltzberg with an update to his request, and why the Office cannot provide responsive records on a rolling basis in order to satisfy Mr. Saltzberg’s October 10th request. The Office must clarify these matters.

Tara Miltimore SPR22/2513 Page 3 November 14, 2022 Conclusion Accordingly, the Office is ordered to provide Mr. Saltzberg with a response to his request 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 the response to this office at pre@sec.state.ma.us. Mr. Saltzberg may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Rich Saltzberg