Todd Wallack v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 19, 2016 SPR16/704 Mr. Glenn 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 Todd Wallack of The Boston Globe appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr Wallack requested a copy of"the Department's log/list of public records requests" for all years readily available. Previous appeals This request was the subject of previous appeals with this office. See SPR15/246 Determination of the Supervisor of Records (May 14, 2015); SPR15/501 Determination ofthe Supervisor of Records (August 21, 2015); SPR15/836 Determinations of the Supervisor of Records (December 31, 2015; May 13, 2016). In my May 13 determination, I declined to reverse my finding that the fee estimate for the provision of responsive records is compliant with the Public Records Law and its Access Regulations (Regulations). I also found that although the Department may withhold portions of the responsive records, it had not met its burden to withhold information identified as Criminal Offender Record Information (CORI). I did not opine further on the Department's February 19, 2016 response matter at that time. Subsequently, Mr. Wallack informed this office that he seeks further action with respect to this matter and this appeal (SPR16/704) was opened as a result. Current Appeal In his appeal petition to this office, Mr. Wallack indicates he objects to the fee estimate as well as the Department's claim that certain information may be withheld. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Glenn Rooney, Esq. SPR16/704 Page 2 September 19, 2016 In camera inspection ofr ecords Upon further consideration of Mr. Wallack's petition, it is the finding of this office that an in camera review of an unredacted copy of a representative sample ofthe responsive records would facilitate a determination as to the applicability of any exemption claims made by the Department. See 950 C.M.R. 32.08(6). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. It is important to note that any cover letter provided with the materials submitted for in camera review will be considered a public record and will retained as part of the file associated with this appeal. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, you are hereby ordered to provide this office with an unredacted copy of a representative sample of the responsive records within ten (1 0) days. The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive record. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Ms. Glenn Rooney, Esq. SPR16/704 Page 3 September 19, 2016 illiams cc: Mr. Todd Wallack