Nicole M. Avitabile, Esq. v. Massachusetts State Police (SPR 20180268)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 15, 2018 SPRlS/268 Alycia DeAngelis, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney DeAngelis: I have received the petition of Nicole Avitabile, Esq. appealing the response of the Department of State Police Office of the Chief Legal Counsel (Department) to a request for -----------------13ublie-re-emas--c-G--c-h--e-c--00-,-§-10A~se€ al-s0-9-;iQ-C.M.R.-J2-.08(-l}.-S-pecificall-;,:,---on-Eebruar_:y_lA.------~ 2018, Attorney Avitabile requested "any and all public records related to motor vehicle accidents involving parties with injuries that occurred on the Massachusetts Turnpike (Route 90) from February 1, 2018 to February 13, 2018." The Department provided a response on March 1, 2018, claiming Attorney Avitabile's request did not reasonably describe the records sought and that Exemption (c) of the Public Records Law may apply to portions of the responsive records. G. L. c. 4, § 7(26)(c). Unsatisfied with the Department's response, Attorney Avitabile petitioned this office and this appeal, SPRl 8/268, was opened as a result. 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, § 1O A( 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). 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, § lO(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. 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

Alycia DeAngelis, Esq. SPR18/268 Page2 March 15, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's March 1st response In its March 1, 2018 response, the Department indicated that" ... the level of detail as presented is insufficient to perform any reasonable search for responsive Department records, and as such, I am closing your request for our file." The Department cited a Public Records Regulation, 950 C.M.R. 32.06(1)(b), which states that "requests for public records shall include a reasonable description of the requested record to the records access officer [(RAO)] so that he or she can identify and locate it promptly." The Department informed Attorney Avitabile that she may re-submit a "request with information sufficient to describe your request completely." The Department further indicated that because the Massachusetts Turnpike is patrolled by 5 different barracks and is travelled by thousands of motorists every day, "[s]earching for, compiling, reviewing and redacting CRASH Reports where injuries occurred for the entire length of the turnpike, even for a 13 day period, would be an undertaking without additional parameters with which to filter out the deluge." The Department indicated that" ... as you are aware, information that tends to reveal the medical information, especially ~he 'injured' status, of ----a~indivicl.uaI~1:Hl0~J.IB~FeJffeseB:t~is~13f0t@Gtea~unEler~the~meElka1/privac:y~~xemptio~to~the~- [P]ublic [R]ecords [L]aw. G. L. c. 4, §7, cl. 26 (c)." Use of custodian's superior knowledge; RA O's obligation 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). The RAO must provide records within the custodian's possession, custody or control of the agency or municipality that the RAO serves, provided that the request reasonably describes the desired information. G. L. c. 66, § lO(a). Although requests for public records should include a reasonable description of the requested records, RAOs are expected to use their superior knowledge of the records in their' custody to assist the requester in obtaining the desired information. 950 C.M.R. 32.04(5). In addition, RAOs are required to assist persons seeking public records to identify the records sought and must, when appropriate, suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably. G. L. c. 66, § 1O (b ); 950 C.M.R. 32.04(5)(b); 950 C.M.R. 32.06(2)(g). The Department is advised that if it is unable to identify the records sought in Attorney Avitabile's request, it is under a duty to assist her in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior

Alycia DeAngelis, Esq. SPR18/268 Page 3 March 15, 2018 to the issuance of this decision. Conclusion It is my understanding that the Department informed Attorney Avitabile that she should contact the Department should she wish to discuss this matter further. Therefore, the Department and Attorney Avitabile are encouraged to communicate further to enable the Department to provide the requested public records sought. Accordingly, I will consider this administrative appeal closed. Sincerely, ~.~ Supervisor of Records cc: Nicole Avitabile, Esq.