Rich Saltzberg v. Oak Bluffs, Town of - Town Administrator (SPR 20222799)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2022 SPR22/2799 Wendy Brough Assistant Town Administrator Town of Oak Bluffs 56 School Street P. O. Box 1327 Oak Bluffs, MA 02557 Dear Ms. Brough: I have received the petition of Rich Saltzberg, of the Martha’s Vineyard Times (MVT), appealing the response of the Town of Oak Bluffs (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Mr. Saltzberg requested the following: [1] ... any and all Jan 1, 2015 to Sept. 1, 2022 requests for records or subpoenas for records made by any member of the FBI or the U.S. Attorney’s Office or the Justice Department. [2] ... any and all records provided to the FBI or the U.S. Attorney’s Office or the Justice Department in response to any Jan 1, 2015 to Sept. 1, 2022 records request or any Jan 1, 2015 to Sept. 1, 2022 subpoena. [3] ... any and all grand jury subpoenas received by the town, its employees, agents or attorneys between Jan 1, 2015 to Sept. 1, 2022. Previous Appeal This request was the subject of a previous appeal. See SPR22/2396 Determination of the Supervisor of Records (November 4, 2022). In my November 4th determination, I ordered the Town to clarify its claims under Exemptions (c) and (f) of the Public Records Law. Following further correspondence with Mr. Saltzberg, the Town responded on December 2, 2022. Unsatisfied with the Town’s response, Mr. Saltzberg appealed, and this case was opened as a result. 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

Wendy Brough SPR22/2799 Page 2 December 19, 2022 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 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. Current Appeal In his appeal petition, Mr. Saltzberg states that “the town, prior to delivering the records, insisted on placing restrictions on them. These restrictions prohibit sharing or printing of the records and place a time limit on the availability of the records.” He contends that “these restrictions run counter to Massachusetts Public Records Law.” The Town’s December 2nd Response In its December 2, 2022 response, the Town provides limited access to the requested records via a website, Box.com, and states that “notwithstanding their production, the Documents remain confidential, and [the Town] continue[s] to maintain that they are protected from disclosure by, among other things, the grand jury secrecy rules, and Exemptions (c) and/or (f) of the Public Records Law.” In its December 2nd response, the Town further states the following: In order to minimize the risk of widespread dissemination of confidential material, the Documents that are being produced through Box.com will have certain restrictions attached to them:  The Box.com invitation will go to [Mr. Saltzberg] and [Mr. Saltzberg] alone. . . .  The Documents will be sent in view mode only. This means that [Mr. Saltzberg] will not be able to print them or forward them to others. . . .

Wendy Brough SPR22/2799 Page 3 December 19, 2022  The Documents will be accessible via Box.com until February 1, 2023, after which neither [Mr. Saltzberg] nor anyone else will have access to the material. Additionally, in a December 9, 2022 email to this office and Mr. Saltzberg, the Town states the following: If, upon review of the Records, the MVT states that it wants or needs to print particular documents, the restriction on printing as to those documents shall be lifted. Likewise, if, upon review of the documents, the MVT states that it needs additional time to have electronic access to the documents, the access-deadline of February 1, 2023 shall be extended. All the MVT needs to do is to first review the documents. Access to Records; Preferred Format of the Requestor The Town is advised that Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Additionally, in accordance with 950 C.M.R. 32.06(1)(e), “a person shall not be required to make a personal inspection of the record prior to receiving a copy.” Further, under 950 C.M.R. 32.07(1)(a), “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” The Town is also advised that a records access officer must, to the extent feasible, provide public records to a requestor in electronic format unless the record is not available in electronic form or the requestor does not have the ability to receive or access the records in electronic format and if feasible, in the requestor’s preferred format. In the absence of a preferred format, the records must be provided in a searchable machine-readable form. See 950 C.M.R. 32.04(5)(d). Where the Town has restricted access to the responsive records on a website for a limited time, and required that Mr. Saltzberg review the records prior to providing him a copy, I find that the Town has not met its burden in responding to this request. Burden of Specificity Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemptions which apply. G. L. c. 66, § 10(b)(iv) (a 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”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In this case, the Town did not meet its burden of demonstrating how the responsive records are exempt from disclosure under the Public Records Law. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The

Wendy Brough SPR22/2799 Page 4 December 19, 2022 Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Mr. Saltzberg with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Rich Saltzberg David J. Apfel, Esq.