Brad Petrishen v. Massachusetts State Police (SPR 20180116)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

February 8, 2018 SPR18/116

Jenniffer P. Migliaccio, Esq. Staff Counsel

Department of State Police 470 Worcester Road Framingham, MA 01702

Dear Attorney Migliaccio:

I have received the petition of 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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Petrishen requested the following records:

1. All correspondence (written or electronic) between department command staff regarding plans to institute GPS devices in cruisers. Such correspondence would include documentation regarding the plan itself as well as conversation around possible implementation.

2. All correspondence (written or electronic) between State Police and the State Police Association of Massachusetts regarding any idea or plan to institute GPS devices in cruisers.

In a response dated January 10, 2018, the Department denied access to records under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d).

The Public Records Law

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1OA(d); 950 C.M.R. 32.03(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).

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

Jennifer P. Migliaccio, Esq. SPR18/116 Page 2 February 8, 2018

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(b){iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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.

Exemption (d) Exemption (d) applies to:

inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shal! not apply to reasonably completed

factual studies or reports on which the development of such positions has been or may be biased.

G. L.c. 4, § 7 (26)(d).

Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y if the Exec. Office of Human Servs., 403 Mass 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, §7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are always subject to disclosure).

In its January 10™ response the Department asserts “this topic is still in the early development and discussion stages. There have been some discussions of policy positions under the previous State Police Command Staff regarding this topic but no policy is completed at this time.” You further note that with respect to the ongoing deliberation, “the early impact bargaining sessions that had taken place regarding this topic were with the previous State Police Command Staff. The new State Police Command Staff is in the early stages of reviewing and discussing this topic. Impact bargaining on this topic is ongoing and no sessions have taken place with the new Command Staff.” The Department concludes that “[b]ased on the foregoing, it is the Department’s position that the responsive records are exempt from disclosure at this time in light of the ongoing policy discussions and impact bargaining.”

In his appeal petition Mr. Petrishen notes “[r]ecognizing the negotiations are apparently ongoing, I understand that some correspondence may reasonably be exempt. However, if there are any ‘reasonably completed factual studies or reports on which the development of such policy positions has been or may be based,’ those would not be exempt. from disclosure.” He further indicates that “[i]t seems plausible there should be some report that preceded such a policy discussion that the public should be entitled to review - something that, without detailing

Jennifer P. Migliaccio, Esq. SPR18/116 Page 3 . - February 8, 2018

the back-and-forth of negotiations, would at least give the public a framework for what the policy goal is and on what logic it is based.”

In a supplemental response dated February 8, 2018 addressing whether any purely factual matters or “reasonably completed factual studies or reports” exist, you assert “upon review of the request, Mr. Petrishen did not request such records.” You indicate that “Mr. Petrishen’s request did not seek any other additional records besides the correspondences referenced above. Any correspondences or documentation by our command staff regarding the Department’s ‘plan

itself is exempt.” You also provide that “the request did not seek such additional records and the . Department responded accordingly.”

In light of the Department’s February 8" response, I find that in order to be able to issue a determination regarding this matter, Mr. Petrishen must clarify what type of records he sought in his December 24, 2017 request. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). This office also encourages the Department and Mr. Petrishen to communicate further to enable the Department to provide the requested public records. G.L. c. 66, §10(b)(vii) (a state agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). 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).

If unresolved issues remain, and upon clarification, Mr. Petrishen may resubmit the appeal within ninety days. See 950 C.M.R. 32.08(1). |

Abusen

Rebecca 8. Klee Supervisor of Records

cc: Brad Petrishen