Rich Saltzberg v. Oak Bluffs, Town of - Police Department (SPR 20222566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 29, 2022 SPR22/2566 Lieutenant Nicholas W. Curelli Oak Bluffs Police Department 2 Oak Bluffs Avenue Oak Bluffs, MA 02557 Dear Lieutenant Curelli: I have received the petition of Rich Saltzberg, of the Martha’s Vineyard Times, appealing the response of the Oak Bluffs Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 8, 2021, Mr. Saltzberg requested “… any and all internal investigation reports, police reports, and reports from outside law enforcement agencies focused on [named] … detective [and] … all reports focused on, or relative to, a housemate/tenant of [a named person]… without redactions.” The Department responded on September 8, 2022 and September 20, 2022. Unsatisfied with the responses, Mr. Saltzberg petitioned this office and this appeal, SPR22/2566, 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. Attorney 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. 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 W. Curelli SPR22/2566 Page 2 November 29, 2022 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 8th and 20th Responses In its September 8, 2022 response, the Department advised, “I’ve CC’d Attorney Collins on this. We are researching to see if there’s anything redacted that can be unredacted. Please contact Attorney Collins directly if you have any further questions regarding this request.” In its September 20, 2022 response, the Department stated, “I spoke with the US Postal Inspection Service. That agency was the outside agency that led the investigation. All of their media inquiries must be received by their FOIA Unit … We do not possess any reports from any outside agencies and I am not sure of the status of any of their cases.” Based on the Department’s responses, it is unclear whether it possesses records responsive to the request. The Department must identify what records it has in its possession, custody or control that are responsive to Mr. Saltzberg’s request. As a result, I find that the Department did not satisfy its burden in responding to this records 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). To the extent that the requested records exist, I find the Department 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 Department 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