Frank L. Stanley v. Massachusetts State Police (SPR 20180249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Mun-ay S11pen1isor o.f'Records September 23, 2019 SPRlS/249 Michael Halpin, Esq. Massachusetts State Police 470 Worcester Rd Framingham, MA 01702 Dear Attorney Halpin: I have received the petition from Frank L. Stanley appealing the response from the Massachusetts Department of State Police (Department/MSP) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). On December 14, 2017 Mr. Stanley requested several types ofrecords relating to Department case number 2012-109-Xl03-l 18. Previous determination This request was the subject of a previous detern1ination. See SPRl 8/249 Detennination of the Supervisor of Records (March 12, 2018). In my March 12th dete1mination I ordered the Department to produce responsive records in its possession in a manner consistent with the detennination, the Public Record Law and its Regulations. Mr. Stanley subsequently filed suit in Suffolk Superior Court and asked the court to enforce the March 12th order. See Frank Leon Stanley, Jr. v. Dep't of State Police, Suffolk Sup. No. 1884CV2847 (March 22, 2019). In a decision dated March 22, 2019, Judge Rosemary Connolly found the following: ... the defendants, through counsel's affidavit, raise substantial questions as to the status of the request before the Supervisor. The record currently before this court is unclear as to whether the Supervisor's March 12, 2018 order stands or if it was satisfied with the [MSP] response that 950 C.M.R. §32.08(l)(a) provided an adequate basis to deny the public records request. This court now then REMANDS this matter back to the Supervisor of Public Records to clarify its decision, in light of the post March 12, 2018 information it received from the MSP and advise whether that changed, or not, the Supervisor's 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

Michael Halpin Esq. SPR18/249 Page2 September 23, 2019 order to the MSP to respond to plaintiffs request and produce MSP file no. 2012- 109-xl03-l 18 (emphasis in original). The court concluded by indicating: Plaintiffs Motion to Enforce the March 12, 2018 Order of the Supervisor of Public Records is STAYED pending a remand of the March 12, 2018 Order to the Supervisor of Public Records to clarify her March 12, 2018 decision and order in light of the post March 12, 2018 inforn1ation that she received from the MSP ( emphasis in original). The March 121 determination " My March 12th determination analyzed a January 18, 2018 response from the . Department. The January l8111response, autho.red by Sgt. Thomas F. Bakey, indicated" ... as criminal charges against you for being in possession of child pornography were withdrawn and no legal action pursued, you are not entitled to any of the items requested." Sgt. Bakey further noted that Mr. Stanley should direct further correspondence to the Northwestern District Attorney's Office and/or the State Police Legal Section. The March 12th dete1mination found that although the Department identified the Northwestern District Attorney's Office as the agency that may be in possession of Mr. Stanley's records, the Department did not indicate whether the records were in the Department's possession. I indicated that if there are records in the possession of the Department that are being withheld, the Department must provide an exemption to withhold those documents from Mr. Stanley and explain why the exemption applies. I further found that the Department did not meet its burden to demonstrate that the records may be withheld given that it did not cite any exemptions or provide specific reasons for the withholding of the requested records. I ordered the Department to produce responsive records in its possession in a manner consistent with the determination, the Public Record Law and its Regulations within 10 business days. The post March 12, 2018 information received from the Department Subsequent to the issuing of the March 12th order, this office learned that Attorney Dan Brunelli, on behalf of the Department, responded to Mr. Stanley's request on February 12, 2018. The February 12th response indicates: [a]fter review of the records, the Department learned that they relate to your conviction for sexual assault offenses as well as charges of child pornography. Please be advised that you have a unique right of access to this file through the judicial process. The appeals process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a

Michael Halpin Esq. SPR18/249 Page 2 · September 23, 2019 unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas the records are directly related to your criminal case, conviction and received said records via criminal discovery,. you have a unique right of access through the judicial process. Attorney Brunelli further notes that "[a]ssuming arguendo that you do not have a unique right of access, the Department would argue that the records are exempt under statutory [E]xemption (a). The records relate to criminal charges of sexual assault and child pornography. The. Department would assert that the records are exempt pursuant to MGL c. 41 §97D." Unique right of access As described above, in the January 181 h response Sgt. Thomas F. Bakey indicated that" .. . as criminal charges against you for being in possession of child pornography were withdrawn and no legal action pursued, you are not entitled to any of the items requested." This response suggests that Mr. Stanley does not have a unique right to the requested records because the relevant criminal charges were withdrawn. Therefore, the Department did not establish how Mr. Stanley may currently obtain the requested records through criminal discovery. In addition, I find it is unclear how previously receiving the records, or having the potential ability to obtain the records from an attorney, constitutes having a unique right of access through the judicial process. As a result, I find that despite the post March 12, 2018 information received from the Department, it has not met its burden to show that 950 C.M.R. § 32.08(l)(a) provides an adequate basis to deny the public records request. G. L. c. 41, § 97D As noted above, the Depaiiment also claims that the responsive records may be withheld under G. L. c. 41, § 97D, as it operates tlu-ough Exemption (a) of the Public Records Law. The statute provides in relevant part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209 A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim's attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims' counselors as defined in section 20Kof chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such

Michael Halpin Esq. SPR18/249 Page 2 September 23, 2019 access is necessary in the performance of their duties; and provided further, that all such reports shall be accessible at all reasonable times, upon written, telephonic, facsimile or electronic mail request to law enforcement officers, district attorneys or assistant district attorneys and all persons authorized to admit persons to bail pursuant to section 57 of chapter 276 .... G. L. c. 41, § 97D. Based on its February 12th response, I find it is unclear which responsive records the Department possesses. See G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records· or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ...." ). Further, the Department has not established how all the responsive records are the type contemplated by G. L. c. 41 § 97D as it operates through Exemption (a) of the Public Records Law. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are nanowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Sincerely, ' ~ Rebecca S. Murray Supervisor of Records cc: Frank L. Stanley