Sean Bucci v. Massachusetts State Police (SPR 20182009)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 26, 2018 SPRlS/2009 Michael B. Halpin, Esq. Department of State Police Office of the Chief Legal Counsel 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, § 1O A; see also 950 C.M.R. 32.08(1). On November 7, 2018, Mr. Bucci requested records related to whether certain" ... law enforcement agencies/personnel and or government agencies/personnel were ever contacted/informed/interviewed/questioned or communicated with, by any Massachusetts State Police Personnel or Massachusetts State Police Civilian dispatcher supervisors or personnel regarding former MSP dispatcher Leigha Genduso' s numerous applicatons/interviews and possible employment with the Massachusetts State Police as a dispatcher she since first started applying and interviewing in 2006 at any time prior to 3/27/07." The Department provided a response on November 20, 2018 and Mr. Bucci appealed. It should be noted that this request is similar to requests that were the subjects of previous appeals with this office. See SPR18/1085 Determinations of the Supervisor of Records (August 3, 2018; September 26, 2018); SPR18/1455 Determinations of the Supervisor of Records (October 15, 2018; November 6, 2018); SPR18/1643 Determination of the Supervisor of Records (November 21, 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). 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. SPR18/2009 Page 2 December 26, 2018 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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Basis of the current appeal In his December 1o th petition to the Supervisor, Mr. Bucci asserts, I am filing this request that does not include the word 'background checks' or post 2008 responsive records. I am simply seeking responsive records asking if any of the following law enforcement agencies/personnel and or government agencies/personnel were ever contacted/informed/interviewed/questioned or communicated with, by any [Department] [p]ersonnel or [Department] civilian dispatcher supervisors or personnel regarding [the identified person's] numerous applications/interviews and possible employment with the Department. .. since she first started applying and interviewing in 2006 at any time prior to 3/27/07. In its November 20th response, Department Staff Legal Counsel, Siobhan Kelly indicates, "[d]espite your attempt to remove the phrase 'background checks' your request, the types of records you are seeking, specifically records reflecting contact with both state and federal law enforcement agencies or Department employees regarding [the identified person's] applications for employment, are documents which would be contained within a background file. Further, as you stated in your request, no background investigation of the [identified person] was performed prior to March 27, 2007." Mr. Bucci also references the following email he sent to the Department on November 20, 2018: I'm trying to understand what you are saying. The Responsive records that I am requesting are prior to 3/27/ 07 You have confirmed that Leigha Genduso first background check took place in 2008 so my point is there is no way that these records that I am requesting are related to any background check because the first background check took place in 2008 according to the Massachusetts state police. So what I'm asking for is responsive records unrelated to any 2008 future background checks. Specifically prior 3/27/07. If the request said 3/27/18 you are correct that was a typo. It is 3/27/07 ... are you saying that there are no responsive records prior to 3/27/ 07 because it is unclear by your response. Considering that

Michael B. Halpin, Esq. SPR18/2009 Page 3 December 26, 2018 no background check has been done until 2008. Please let me know as soon as possible. I find that the Department must clarify whether it possesses any of the responsive records that Mr. Bucci describes above. See G. L. c. 66, § lO(a)(ii), (b)(ii). Conclusion Accordingly, the Department is ordered to provide Mr. Bucci a response prepared 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: Sean Bucci