James C. Erne v. Massachusetts State Police (SPR 20181611)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 16, 2018 SPRlS/1611 Michael Halpin, Primary RAO Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: .... I have received the petition of James Emeappealing the responseof the I:>~partinent of Police State (Department) to a requestforpublfo records. d.L. c. 66, §··rnA; seeilso 95o·c:M.R. 32.08(1 ). Specifically, Mr. Erne requested "copies of any and all releasable police reports, call logs, witness statements, suicide notes, phone records and/or investigation findings" related to an identified event. The Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(c), (f). 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion oft he responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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, Primary RAO SPR18/1593 Page 2 November 16, 2018 Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In its response, the Department indicates "given the nature of the identified documents, the Department does not deem the records to subject to public release pursuant to G.L. c. 4, §7, cl. 26 (c) and (f) (privacy, medical and investigative exemptions)." The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemptions (c) and (f) without any further explanation as to the exemptions' applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exe111p!i911Jotlie requested records in order tocomply with the Public Records Law and its Access Regulations. Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Erne 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: James Erne