Baril, Michael v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150226)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 12,2015 SPRlS/226 Mr. Glenn M. Rooney, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham MA, 01702 Dear Attorney Rooney: I have received the petition of Michael Baril appealing the response of Massachusetts Department of State Police (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Baril requested copies of records regarding himself and another identified individual. In a response dated December 30, 2014 you explained that full and thorough search of the Department's files generated no records regarding Mr. Baril. In this response you explained that any records regarding the other identified individual were being withheld pursuant to Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, §7(26) (c), (f). In a follow-up response dated January 26, 2015 the Department maintained its original position from December 30, 2014. With regards to records specific to Mr. Baril, in his petition Mr. Baril contends that he had filed several police reports at the Brookfield barracks and believes must be records responsive to that portion of his request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). However, if it is the case that responsive records did at one time exist and the Department maintains that the responsive records no longer exist, the Department is then ordered to explain in writing its justification under the Public Records Law and the Statewide Records Retention Schedule. This portion of the appeal is now closed. The Department denied providing responsive records regarding the other identified individual in their entirety. In its response the Department cited to Exemptions (c) and (f) as means for withholding any and all the responsive records. The Department simply recited the Exemptions and portions of case law related to the Exemptions providing no nexus to the withheld records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Glenn M. Rooney, Esq. SPR15/226 Page Two May 12, 2015 The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Department did not contain the specificity required in a denial of access to public records. Accordingly, Department is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each of the requested records. Accordingly, the Department is hereby ordered to provide all responsive records to Mr. Baril in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Baril a written explanation, with specificity, how a particular exemption applies to each record along with a custodial index. See 950 C.M.R. 32.08(8). This administrative appeal is closed. Supervisor of Records cc: Mr. Michael Baril