Sean Bucci v. Massachusetts State Police (SPR 20181690)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 28, 2018 SPRlS/1690 Michael Halpin, Esq. Chief Legal Counsel Department State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Sean Bucci appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, on August 25, 2018 Mr. Bucci requested "[a]n unredacted (unless legally permissible to redact certain portions) copy of the Massachusetts State Police Internal Affairs 44 page report regarding the Trooper Gendusa hiring which recommended her termination and cited 11 violations of the agencies rules and regulations." Having not received responsive records, Mr. Bucci appealed to this office. 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, § lO(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 of the responsive record. Appeal The Department initially responded on September 13, 2018 by indicating "I recently 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. SPR18/1690 Page 2 November 28, 2018 received a copy of the requested report and am in the process of reviewing and redacting the responsive report. However, I do require additional time to finish this process. I will provide you with the responsive report as soon as I finish the redactions. Please note, any portions of the report able to be produced will be provided at no cost." In his appeal petition Mr. Bucci indicates that he has yet to receive the requested record or a substantive response. G. L. c. 66, § 1O (b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § lO(b)(vi). Whereas Mr. Bucci's request was submitted on August 25, 2018, and the Department has not provided responsive records or substantive response, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 1 O(b ). Conclusion Accordingly, the Department is ordered to review the responsive records, redact where necessary, and provide Mr. Bucci responsive records, in a manner consistent with this order, the Public Records Law, and its Regulations without delay. 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: Sean Bucci