Nicole M. Avitabile, Esq. v. Massachusetts State Police (SPR 20180349)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 29,201 8 SPRl81349 Alycia DeAngelis, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 0 17 02 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 public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on February 14, 201 8, 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 ." Previous appeal This request was the subject of a previous appeal. See SPR181268 Determination of the Supervisor of Records (March 15,2018 ). I closed SPR181268 by advising the Department of its obligation as a custodian of records to assist the requester in identifying the records sought and respond in compliance with the Public Records Law. Following the March 15" determination, Attorney Avitabile, claiming she has "received no new additional information . . .," petitioned this office and this appeal, SPR181349, 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, 5 10A(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, 5 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

Alycia DeAngelis, Esq. Page 2 March 29, 20 18 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 5 1 1 (1 995) (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Compliance with the requirements ofproviding a response A review of the documents submitted by Attorney Avitabile reveals that the Department provided an initial response to Attorney Avitabile's February 14"' request on March 1,2018 . In the March lStre sponse, 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." Although the Department provided an initial response within ten business days, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, an RAO's written response must not only be provided within ten business days, but must also comply with tlie criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) 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, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not

Alycia DeAngelis, Esq. Page 3 March 29,20 18 exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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 or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 1O A. Despite its March lStr esponse, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. G. L. c. 66, 5 10(b). Based on the Department's response and Attorney Avitabile's petition for appeal, it is uncertain whether the Department possesses records responsive to the request. The Department must confirm whether or not it possesses responsive records. If the Department believes that an exemption is applicable to withhold responsive records or portions thereof, the Department must identify the exemption and explain with specificity how the exemption applies. Flatlev, 419 Mass. at 51 1 (custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion This office again encourages the Department and Attorney Avitabile to communicate further to enable the Department to provide the requested public records. G. L. c. 66, 5 10(a)(i) (the request must reasonably describe the public records sought). 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, § 1O (a)(ii). The Department must explain whether it possesses any responsive records and use its knowledge of the records to facilitate providing responsive records. G. L. c. 66, 5 1O (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 Department is reminded 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. 34.04(5). Accordingly, the Department is hereby ordered to provide Attorney Avitabile with a response to the request, provided in a manner consistent with this order, the Public Records Law,

Alycia DeAngelis, Esq. Page 4 March 29,201 8 and its Regulations 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.A ttorney Avitabile 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 'ii' Supervisor of Records cc: Nicole Avitabile, Esq.