Joshua F. Grammel v. Department of State Police - Office of the Chief Legal Counsel (SPR 20181248)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 29,20 18 SPR18/1248 Siobhan E. Kelly, Esq. Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 0 17 02 Dear Attorney Kelley: I have received the petition of Joshua Grammel, Esq. appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Grammel requested "records of violator demographic and violation information from all motor vehicle citations issued by two state troopers during a six month timeframe" from the Department on July 16,2018. The Department provided a response on August 7,20 18 stating Attorney Grammel had "a unique right of access to those documents via Rule 17 of the Massachusetts Rules of Criminal Procedure." Unsatisfied with the Department's response, Attorney Grarnrnel appealed to this office on August 15,201 8 . 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). 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, 51 1 (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 l sec.state.ma.us/pre pre(6Jsec.state.ma.u~

Siobhan E. Kelly, Esq. Page 2 August 29,20 18 Unique right of access In its August 7thr esponse the Department asserts "[tlhe Department would respectfully maintain that if this request for records is being made in your capacity as a defense attorney representing a client who was arrested and is now being prosecuted, you have a unique right of access to these documents via Rule 17 of the Massachusetts Rules of Criminal Procedure." The Department further explains that Attorney Grammel can "request the documents in question via a motion for third party records (a unique right not available to the public) and as a result, the Department would maintain that the provisions of 950 C.M.R. 32.08(1)(a) apply." In light of the information provided to Attorney Grammel, I find the Department has not demonstrated that Attorney Grammel has a unique right to access these records that precludes him from pursuing an appeal with this office. 950 C.M.R. 32.08(1)(a). It is unclear exactly what records the Department has within its possession. G. L. c. 66, 5 lO(a)(ii), (b)(ii) (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). It is also unclear if there is ongoing litigation that would involve these records. If the Department is withholding the requested information 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, 5 lO(b)(iv). The Department may ask Attorney Grammel for a more refined search in order to best provide Attorney Grammel with the records he is requesting. G. L. c. 66, 5 lO(b)(vii) (an 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). Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld in their entirety. Accordingly, the Department is ordered to review the requested records, redact where necessary, and provide Attorney Grammel with responsive records, provided in a manner consistent with this order, the Public Records Law, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joshua Grammel, Esq.