Charles Bohigian v. Massachusetts State Police (SPR 20181433)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 10, 2018 SPR18/1433

Dan Brunelli, Esq.

Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 01702

Dear Attorney Brunelli:

I have received a petition from Charles Bohigian appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Originally, Mr. Bohigian made a public records request on September 19, 2018 to the Department pertaining to Department policies. The Department provided Mr. Bohigian with a response on September 20, 2018 which Mr. Bohigian then appealed to this office on September 25, 2018.

Public Records Law

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 of receipt of the request. G. L. c. 66, § 10(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, § 10(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 of records at the time of the request. See G. L. c. 66, § 10(a)(i1), (b)(i1). 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, § 10(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, § 10(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

Dan Brunelli, Esq. SPR18/1433 Page 2 October 10, 2018

burden of establishing the applicability of an exemption).

Appeal

Mr. Bohigian’s appeal states that the Department’s response to his request for Department policies was unclear in identifying which polices the Department does and does not posses. 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, § 10(a)(i1), (b)(i1). The Department stated in the September 20" response letter to Mr. Bohigian they they provided “policies that relate most closely to your request.” It does not clearly state what records are not currently in their possession. See G. L. c. 66, § 10(b)(ii). If the records are within the Department’s possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption).

Accordingly the Department is ordered to review the requests and provide Mr. Bohigian with any requested records in accordance with the Public Records Law, its Access Regulations and this order within ten business days. 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. Bohigian 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: Charles Bohigian