Lisa Munger v. Massachusetts State Police (SPR 20171458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 25, 2017 SPR17/1458 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0172 Dear Attorney Brunelli: I have received the petition of Lisa Munger appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Munger requested records related to service calls from January 22, 1996-February 5, 1996. The Department informed Ms. Munger that the requested records have a retention period of three years and that the Department does not have the requested service 11 call/shift logs for 1996. On July 2i , the Department provided Ms. Munger with a compact disc containing a PDF file of the dispatch and communications logs from the barracks. The requested records were the subject of three prior appeals. See SPR17/876; SPR17/1119; SPR17/1333 Determinations ofthe Supervisor of Records (June 29, 2017; August 24, 2017; September 21, 2017). In my September 21, 2017 determination, I closed the appeal with the proviso that the Department provide Ms. Munger with a response to explain the Department's efforts to search for the records and to provide her with any copy of the Records Conservation Board (RCB-1) form for permission to destroy records after the expiration of the one-year period. Under the Massachusetts Statewide Records Retention Schedule Number 01-17, Series Number J4-4 Dispatch and Communications Records, "documents all radio, telephone, or electronic communications received or generated during a shift relating to incidents, complaints, patrols, or response; Includes digital, audio or video recordings of dispatch calls, ambulance calls, E-911 calls, field response, and communications between units and/or command centers: Retain for 1 year." As a result of my September determination, the Department provided Ms. Munger with both the RCB-1 form approved by the Commonwealth Records Conservation Board (RCB), and copies of memoranda from each Department barracks which reveals how a diligent search was conducted for any of the responsive records from 1996 that the Department may not have destroyed after approval. Unsatisfied with the Department's September 25th One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Daniel Brunelli, Esq. SPR17/1458 Page2 October 25, 2017 response after my September 21st determination, Ms. Munger petitioned this office, and the current appeal was opened. Basis for the current appeal Ms. Munger questions whether she has received a full copy of the form to seek permission to destroy the responsive records from the Board in February 2002 because she only received one-page when the facsimile header states P. 02. Ms. Munger should be advised that while the facsimile header reflecting the date, time and fax number states 2 pages of the RCB-1 form, a representative of the Board informed this office that the approval form is only one page, the form itself. Therefore, it is my understanding that the Board uses a coversheet to send the approval back to the Executive Office of Public Safety. It is also my understanding that each individual Department barrack does not seek permission to destroy records in accordance with the Statewide Records Retention Schedule (Retention Schedule). The requests for permission to destroy records of the Department are sent in the aggregate by the Executive Office of Public Safety to the Board. Further, Ms. Munger states that the Department did not list any description of the records from the Retention Schedule it sought to destroy in 2002. Therefore, she asks this office to order the Department to produce the requested records. Whereas, the Department has already stated in several of its written responses, including in the memoranda from each barracks, stating that after a diligent search, the Department has no records responsive to Ms. Munger's specific request for records from 1996. A review by this office of the memoranda prepared by each Records Access Officer in the individual barracks shows that diligent searches were conducted, including of archived records. I note, the Department cannot produce records it does not have; nor can this office order the Department to produce records that do not exist. Under the Public Records Law, a records custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, I find that the Department has met its burden of conducting a diligent search and responding to Ms. Munger's request. I also find that whereas the Department has no further records responsive to Ms. Munger's request, this administrative appeal is closed.

Daniel Brunelli, Esq. SPR17/1458 Page 3 October 25, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Lisa Munger