Shawn Deleskey v. Essex County Sheriff's Department (SPR 20180274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 20, 2018 SPRlS/274 Richard Jeffery. Esq. Chief Legal Counsel Essex County Sheriffs Department 20 Manning Ave. Middleton, MA. 01949 Dear Attorney Jeffery: I have received the petition from Shawn Deleskey appealing the response from the Essex County Sheriffs Department (Department) regarding a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Mr. Deleskey is requesting documents pertaining to a certain internal affairs investigation by the Department. Mr. Deleskey informed this office he was told by the Department that these internal affairs investigation records do not exist and he appeals based on the Department's response. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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, § IO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § IO(b)(iii). 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, § IO(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 ... "); 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 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

Richard Jeffery. Esq. SPR18/274 Pg. 2 March 20, 2018 burden of establishing the applicability of an exemption). It is unclear whether there are records responsive to Mr. Deleskey's request. If the Department is withholding documents regarding the internal affairs investigation of Mr. Deleskey it must identify the withheld information, cite an exemption as the basis of the withholding and explain why the exemption applies. See G. L. c. 66, § lO(b)(iv). Conclusion Accordingly, the Department is ordered to review the requests made by Mr. Deleskey and provide a response to Mr. Deleskey, made in accordance with the Public Records Law, its Access Regulations and this order within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If unresolved issues remain, Mr. Deleskey may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Shawn Deleskey