Shawn Deleskey v. Essex County Sheriff's Department (SPR 20180429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 12, 2018 SPRlS/429 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, § lOA; see also 950 C.M.R. 32.08(1). Mr. Deleskey sent an email on March 3, 2018 requesting documents pertaining to a certain internal affairs investigation by the Department. The Department provided Mr. Deleskey with internal affairs documents and a response letter on March 26, 2018. Mr. Deleskey is appealing the Department's March 26th response letter. In a March 30, 2018 email Mr. Deleskey specifically requests an acknowledgement of the start of the investigation, signed by Mr. Deleskey; a signed acknowledgement of Mr. Deleskey's Weingarten Rights, which acknowledges his acceptance or refusal of those rights; a signed acknowledgment of the resolution of the investigation; and a signed acknowledgment of the results of the investigation that would have been provided to Mr. Deleskey at the end of an investigation. Mr. Deleskey also requests all other transcripts and recordings pertaining to him that are in the Department's possession. 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, § 1O (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, § lO(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, § lO(b)(iii). 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. SPR18/429 Pg.2 April 12,2018 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, § 1O (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 burden of establishing the applicability of an exemption). It is unclear whether the Department possesses any additional responsive records based on Mr. Deleskey's March 30th email. Accordingly, the Department is ordered to review the requests made by Mr. Deleskey and provide him with any responsive records that are in the Department's possession, 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: Mr. Shawn Deleskey