Brian O'Connor v. Massachusetts State Police (SPR 20181569)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 21, 2018 SPRlS/1569 Michael Halpin, Esq. Massachusetts State Police 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the Department of State Police's (Department) request for reconsideration regarding a determination related to a Department response to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Brian O'Connor requested "[a]t least one current photograph or Duty Photo in the possession of the Massachusetts State Police of Massachusetts State Police Staff Counsel, RAO division" of a named individual. The Department responded on October 24, 2018 by denying access to records under Exemptions (a), (b) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a)-(c). This request was the subject of a previous determination. See SPRl 8/1569 Determination of the Supervisor of Records (November 8, 2018). In my November 8th determination I ordered the Department to provide Mr. O'Connor with a response provided in a manner consistent with this order, the Public Records Law, and its Access Regulations (Regulations). Attorney Sean Farrell sought reconsideration .on behalf of the Department in an email dated November 30, 2018. 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, § lOA(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, § 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, § 1 O(b )(iv); 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). To meet the specificity requirement a custodian 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

Michael Halpin, Esq. SPRlS/1569 Page2 December 21, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Request for reconsideration In its October 24th response the Department cited Exemptions (a), (b), and (c) in support of its denial of access to the requested records, which the Department describes as a photograph of a civilian Department employee. The Department also referenced Exemptions ( o) and (n) to support its position that "[s]afety and security concerns for an individual's identity, particularly public employees, are also reflected in the law." In its November 30th email the Department notes that it" ... respectfully disagrees with your determination and requests that you reconsider it for the reasons that follow" and provides additional arguments regarding its claims under Exemptions (b), (c), and (n). The Department also asserts "[g]iven the absence of any legitimate public interest in the record requested and the circumstances of the request, the Department requests that the Supervisor decline to entertain this appeal pursuant to 950 CMR 32.08(2)(b) (2) (Supervisor may deny an appeal where records request 'is designed or intended to harass [or] intimidate'.)." In support of this position the Department indicates "[t]he Supervisor should consider that the request for the photograph was made only after the subject employee properly denied an umelated request made by the same requestor. The requestor then submitted the demand for the employee's personnel photograph. He represented that he needed the ID photograph to 'enhance' a story he was intending to publish regarding the Department and the Public Records Law." For the reasons articulated in the Department's October 24th and November 30th responses, specifically the timing of the request and the fact that disclosure of the photograph of this civilian employee would not shed light on government operations, I decline to opine further on this matter. See 950 C.M.R. 32.08(2)(b)(2) (this office may deny an appeal if, in the opinion of the Supervisor of Records, the request is designed or intended to harass, intimidate, or assist in the commission of a crime). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian O'Connor