Michael P. Dreslinski v. Massachusetts State Police (SPR 20181852)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 12, 2018 SPR18/1852 Michael Halpin, Primary RAO Massachusetts State Police 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Michael Dreslinski appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dreslinski requested "[a]ll records created and received by the Commonwealth Fusion Center, regardless of date, regarding [a n identified individual]." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1111 Determination of the Supervisor of Records (August 9, 2018). I closed SPR18/1111 by ordering the Department to provide Mr. Dreslinski with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided Mr. Dreslinski with another response dated September 5, 2018. Unsatisfied with the Department's response, Mr. Dreslinski petitioned this office and this appeal, SPR18/1852, was opened as a result. 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 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 SPR18/1852 Page 2 December 12, 2018 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. Current appeal In its September 5th response, the Department indicates that it provided a previous response to Mr. Dreslinski dated February 6, 2018 in which the Department included "a detailed catalogue of every response record related to the Fusion Center investigation which ultimately led to [an identified] prosecution. .. " The Department states it "denies [Mr. Dreslinski's] request under exemptions (a), (c), (f) and (n)." The Department asserts that it "has fully and completely complied with its obligation as a records custodian under the Public Records Law. The Department has precisely identified records in its custody which were responsive to [Mr. Dreslinski's] previous numerous requests. The Department thoroughly explained why the records are not subject to public disclosure under the Public Records Law. As such, no additional records from the Department will be forthcoming." Whereas, the Department provides no further information in support of the claimed exemptions' applicability to the responsive records, the Department still has not satisfied its burden in responding to this records request. The Department did not specifically explain the applicability of the claimed exemptions to the responsive records. See SPR18/1111; 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); Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995). Order 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. Dreslinski with responsive records, or in the alternative, the Department may provide Mr. Dreslinski with another response to the request in support of its exemption claims. Either response must be 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: Michael Dreslinski