Mike Beaudet v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 11, 2016 SPR16/156 Mr. Michael B. Halpin Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Mike Beaudet of WCVB-TV appealing the response of 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. Beaudet requested copies of, "internal affairs report summaries and case files of a specifically identified trooper". In a response dated February 23, 2016 the Department provided a number of responsive records in ten ( 10 ) separate files. In this response the Department withheld portions of records and other records in their entirety citing to the confidentiality of reports of rape and the daily logs; public records; confidentiality of certain entries statutes G. L. c. 41 §97D, 98F as they operate by way of Exemption (a), and the investigatory exemption and Exemption (f), the investigatory exemption of the Public Records Law. G. L. c. 4 §7(26)(a),(f). The basis of Mr. Beaudet's appeal is that he believes, "the records are overly redacted to a point where it is difficult to understand the meaning of the records". 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the 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); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Michael B. Halpin SPR16/156 Page2 March 11, 2016 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 the requested records. In accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05(4). The Supervisor ofRecords may require that a custodian compile an index where numerous records have been requested. Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 460 (2007); quoting Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 384 (2002) (where applicability of Public Records Law exemption is questionable, review may "be accomplished through the use of an itemized and indexed document log in which the custodian sets forth detailed justifications for its claims of exemption.") Said index shall meet the following requirements: (a) the index shall be contained in one document, complete in itself; (b) the index must adequately describe each withheld record or deletion from a released record; (c) the index must state the exemption or exemptions claimed for each withheld record or each deletion of a record; and, (d) the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. Nothing in 950 C.M.R. 32.08 shall preclude the Supervisor from employing alternative or supplemental procedures to meet the particular circumstances of each appeal. See 950 C.M.R. 32.08 (7)(a-d). Accordingly, whereas it is the duty of the records custodian to state with specificity which documents are being withheld, the exact exemptions claimed, and the reasons why the documents are being withheld, the Department is hereby ordered to provide this office and Mr. Beaudet with a custodial index ofthe records within ten (10) days. 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

Mr. Michael B. Halpin SPR16/156 Page 3 March 11, 2016 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 the responsive records. To assist in requesting and responding to requests for public records please refer 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 re uest. Please contact my office directly at the telephone number provided in this deter · ation or further information. cc: Mr. Mike Beaudet