David Vigneault v. Tisbury, Town of - Police Department (SPR 20241921)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 18, 2024 SPR24/1921 Lieutenant William P. Brigham Records Access Officer Tisbury Police Department 32 Water Street Vineyard Haven, MA 02568 Dear Lieutenant Brigham: I have received the petition of Daniel J. Finn, Esq., on behalf of David Vigneault, appealing the response of the Tisbury 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 April 3, 2024, Mr. Vigneault requested a specific incident report. The Department responded on April 9, 2024, denying the request and citing Exemption (a) of the Public Records Law for withholding records. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Attorney Finn petitioned this office and this case, SPR24/1921, 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. 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. 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 William P. Brigham SPR24/1921 Page 2 July 18, 2024 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 April 9th Response In its April 9, 2024 response, the Department states, “[a]ny withholding of information is done in accordance with the Massachusetts Public Records Law, M.G.L. c. 66 §10. Some of the information in the record you seek is protected from release under Exemption A, 36 G.L. c66., §6A(e). [sic]” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Based on the Department’s April 9th response, it is unclear what records the Department intends to withhold from disclosure. See 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 950 C.M.R. 32.06(3)(c)(4). Further, it is unclear which specific statute the Department is referring to under Exemption (a) in order to withhold the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the

Lieutenant William P. Brigham SPR24/1921 Page 3 July 18, 2024 requested records in order to comply with the Public Records Law. See G. L. c. 66, § 10(b)(iv). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Attorney Finn 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: Daniel J. Finn, Esq. David Vigneault