Brendan P. Smith, Esq. v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 4, 2016 SPR16/086 Mr. Michael B. Halpin, Esq. Chief Legal Counsel Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01701 Dear Attorney Halpin: I have received the petition of Brendan P. Smith, Esq. of Gatehouse Media, Inc. on behalf of their client Brad Petrishen of the Worcester Telegram & Gazette 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, Mr. Petrishen requested copies of all the records related to a "no knock" search warrant executed for a specifically named location in Worcester, Massachusetts on or about August 19, 2015. On January 15, 2016, the Department provided Mr. Petrishen with a redacted copy of a report resulting from an administrative review of the incident. However, the Department informed Mr. Petrishen that the remaining records are being withheld pursuant to several exemptions in the Public Records Law. On behalf of the Worcester Telegram & Gazette, Attorney Smith appealed the response. In a telephone conversation on February 22, 2016, an attorney on my staff explained that the Department had not met its burden of supporting the exemption claims to withhold the remaining records. You indicated that the Department would supplement its January 15 written response, and this office provided the Department with a copy of the appeal file to assist in drafting a more detailed, written 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Michael B. Halpin, Esq. SPR16/086 Page 2 March 4, 2016 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). Accordingly, I will consider this administrative appeal closed, with the proviso that the Department, within ten (10) days, provide Attorney Smith with a detailed response prepared 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 provide a written explanation, with specificity, how a particular exemption applies to each record or each portion of a 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). To assist in responding to requests for public records I refer the Department to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 req7st. Please contact my office directly at the telephone number below for further infor · . n ery t yburs, ~ I ti ~iams enf sot(_Jf Records cc: Mr. Brendan P. Smith, Esq.