Marshall Daley v. Massachusetts State Police (SPR 20181978)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 18, 2018 SPRlS/1978 Michael B. Halpin, Esq. Chief Legal Counsel - Records Access Officer Department of State Police 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Marshall Daly appealing the non-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, Mr. Daly requested a copy of an internal affairs investigation report and the disciplinary actions pertaining to an identified member of the Department, between January 1, 2014-January 26, 2018. Previous appeal - SPRJ 8/334 The responsive records were the subject of a prior appeal and in camera inspection. See SPR18/334 Determinations of the Supervisor of Records (March 29, 2018 and May 8, 2018). In my March 29th determination, I requested the Department provide this office with an un-redacted copy of the internal affairs investigation report (report) for an in camera inspection in order to render a final decision on the Department's Exemption (f) claim. The Department provided the report for in camera inspection, and I rendered a determination on the Department's Exemption (f) claim to withhold the report in its entirety. In my May 8th determination, I found, "[w]here the Department's work on this matter continues through the trial board proceedings and that the witness statements are so interwoven throughout the entire report, even redaction at this time would neither protect the identities nor prevent testimony of the witnesses from being compromised." The Department had met its burden in demonstrating that the report may be withheld, in its entirety, under Exemption (f) until such time as the trial board proceedings concluded. Current appeal-SPRJS/1978 In October 2018, Mr. Daley contacted this office asking whether the Department had notified this office that the trial board proceedings had concluded, and whether the report would 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 B. Halpin, Esq. SPR18/1978 Page 2 December 18, 2018 be provided to him. A Public Records Division staff attorney telephoned Daniel Brunelli, Legal Counsel in the Department; however, was unable to connect directly with Attorney Brunelli to inquire whether the trial board proceedings have concluded. On October 28, 2018, Mr. Daley made a new request to the Department for the report. On December 4, 2018, Mr. Daley petitioned the Supervisor, indicating that he did not receive a response to his October 28th request. As a result the current appeal was opened. 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, § 1O (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 burden of establishing the applicability of an exemption). It is my understanding that a Public Records Division staff attorney provided the Department with a copy of the appeal file to assist the Department in drafting a response to Mr. Daley's request. Order Accordingly, the Department is ordered to provide Mr. Daley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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: Marshall Daley