Shibley, Craig v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150234)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords July 14, 2015 SPRlS/234 Mr. Sean W. Farrell, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Farrell: I have received the petition of Craig Shibley appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested to be able to view the file related to a Department investigation of a homicide from the year 1951. This request was the subject of a previous appeal by Mr. Shibley. See SPR14/058 Determinations ofthe Supervisor ofRecords (February 7, 2014, September 15, 2014). In your written response dated November 21, 2014, you provided Mr. Shibley with a redacted copy of a report dated September 2, 1951. This report was provided to you by the Worcester County District Attorney's Office (DAO) in a letter dated October 10,2014. On behalf of the DAO, Christopher P. Hodgens, Esq. included with the report a cover letter in which he claims certain responsive information is exempt from disclosure pursuant to Exemptions (c) and (f) ofthe Public Records Law (hereinafter "the response"). G. L. c. 4, § 7(26)(c), (f). Mr. Shibley has appealed the substantive nature of the response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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 ( c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Sean W. Farrell, Esq. SPR15/234 Page Two July 14,2015 applicability of an exemption). 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, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In an article in the September 14, 2014 edition of the Boston Sunday Globe written by reporter Todd Wallack, Mr. David Procopio of the Department was quoted as stating that, while "[t]echnically, the case is open because no one was ever charged or named as a suspect," "there are currently no new or active leads being investigated." As a result, the responsive records do not pertain to an ongoing investigation. It is important to note that Mr. Shibley's request was to view the responsive investigation file. The Department's response dated November 21,2014 does not provide a reason for the denial of Mr. Shibley's request to view the file. It is my understanding that the DAO provided the Department with the redacted copy of the September 2, 1951 report and the cover letter explaining the exemption claims. Whereas the DAO made the redactions and exemption claims, I decline to opine on these claims because this appeal is with the Department. Mr. Shibley may submit a new request to the DAO and appeal to this office any unsatisfactory response, including the redacted copy of the September 2, 1951 report. The Department's response dated November 21,2014 does not clearly indicate whether the Department possesses any records that are part of the investigation file other than the report dated September 2, 1951. However, in a phone conversation with a member of my staff, you stated the Department is in possession of photographs that are part of the investigation file and that you intend to provide such photographs. As such, the Department is hereby ordered to provide the photographs and any other records in the Department's possession that are part of the responsive investigation file. The Department must also allow Mr. Shibley to view these records at a mutually convenient time and place upon request. See G. L. c. 66 § 10(a). In addition, the D partment must explain to Mr. Shibley the process by which the responsive investigatio~file as turned over to the DAO. cc: Mr. Craig Shibley Mr. Christopher P. Hodgens, Esq.