Dreslinski, Michael v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 8, 2016 SPRlS/872 Ms. Jaclyn R. Zawada, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Zawada: I have received the petition of Michael Dreslinski appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, over the past several months Mr. Dreslinski requested copies of records in the custody of the Department in which he is identified. In correspondence to Mr. Dreslinski the Department informed him that, due to his unique circumstances, he has a right of access to certain Department records that would be deemed exempt from disclosure under the Public Records Law to the general public. The Department denied access to exempt portions of the responsive records that do not fall under this description. Subsequent to responses by the Department, Mr. Dreslinski appealed. September 29, 2015 Request-Fusion Center Non Public Records In his September 29, 2015 request Mr. Dreslinski sought access to records of the Commonwealth Fusion Center that have been withheld under the Public Records Law. In your response the Department treated this as a request for public records, and denied that request, but claimed no exemptions. Mr. Dreslinski appealed this response. The personal status of a requester does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Mr. Dreslinski may be deemed to have access to certain portions of Department records in which he is identified. This does not grant Mr. Dreslinski a right of access to other portions of the records, portions which contain information that is exempt from disclosure under the Public Records Law. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jaclyn R. Zawada, Esq. SPR15/872 Page 2 January 8, 2016 In a January 5, 2015 telephone conversation, you explained to me that the Department, in its efforts to respond to Mr. Dreslinski, has tried to explain to him that the Department would provide non-public information to Mr. Dreslinski to the extent he has a unique right of access to portions of those records. In his September 29 request, however, Mr. Dreslinski specifically requested nonpublic information; in other words, information that is exempt under the Public Records Law. By definition the information requested is exempt, accordingly the Department denied this request under the Public Records Law. The Department's response contained no cited exemptions to support a denial of access to records responsive to the September 29 request. Any custodian that maintains that any portions of requested records are exempt from disclosure must provide to that requester a written explanation, with specificity, how a particular exemption applies to each record. 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. I find that, while Mr. Dreslinski requested nonpublic records, the Department is obligated to state an exemption or exemptions to justify nondisclosure. July 1, 2015 Request-Clinton Crime Scene Records On July 1, 2015 Mr. Dreslinski requested copies of "records related to theft of department of conservation and recreation (DCR) property from the DCR facility located on Wilson St., Clinton, on or about August 06, 2007 in which state police crime scene services responded and collected evidence, including a glove print on a vehicle identified by Trooper Emily Phaneuf." In your September 22, 2015 response, you provided nonpublic information specific to Mr. Dreslinski as explained above, redacting other information pursuant to specific exemptions claimed under the Public Records Law. Those redacted portions included criminal offender record information and other information that would "directly or indirectly [identify] victims, complainants, witnesses, and/or informants." G. L. c. 4, § 7 (26) (a), (f). Mr. Dreslinski appealed, claiming the response lacked specificity. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). I find the Department properly identified the portions that would be redacted, and properly identified the exemption or exemptions that applied to the redacted information. Conclusion The unique nature ofMr. Dreslinski's status, coupled with the Department's efforts to respond, have created a situation in which requester and custodian would benefit by an additional response by the Department. Accordingly, the Department is hereby ordered to provide a final

Ms. Jaclyn R. Zawada, Esq. SPR15/872 Page 3 January 8, 2016 response to Mr. Dreslinski with respect to records responsive to his requests. In its response the Department must indicate the portions of the records it has provided to Mr. Dreslinski, differentiating portions subject to mandatory disclosure under the Public Records Law from those portions provided to him due to his unique status. If the Department maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Dreslinski a written explanation, with specificity, how a particular exemption applies to each record. 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. 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide any remaining responsive records. To assist the Department I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number above for further information. cc: Mr. Michael Dreslinski