Seth Kershner v. Massachusetts State Police (SPR 20190250)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 21, 2019 SPR19/0250 Michael B. Halpin, Esq. Massachusetts State Police 470 Worchester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Seth Kershner appealing the response of the 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. Kershner requested "any PowerPoint slides, hand-outs, instructional materials or other records, either received or produced by your department in support of the inter-agency training focusing on protester lock-down devices (aka 'sleeping dragons'), held earlier this year in Scituate, Rhode Island, and attended by a number of your SERT officers ... " This request was the subject of a previous appeal. See SPRl 8/1503 Determination of the Supervisor of Records (October 25, 2018). I closed SPR18/1503 by ordering the Department to provide Mr. Kershner with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided responses to Mr. Kershner on December 15, 2018 and January 15, 2019. Unsatisfied with the Department's responses, Mr. Kershner petitioned this office and this appeal, SPRl 9/0250, 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, § 1O (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 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. SPR19/0250 Page 2 February 21, 2019 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. Compliance with the requirements ofp roviding a response; specificity The Department's January 15th response indicates that it has "reached out to several parties in an attempt to locate it-the State Police Academy did not produce the document." Although the Department provided a response to Mr. Kershner's request, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; · (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) 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, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories ofrecords, or portions ofrecords that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) 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; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would

Michael B. Halpin, Esq. SPR19/0250 Page 3 February 21, 2019 enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor ofrecords under subsection ( a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection ( c) of section 1O A. G. L. C. 66, § lO(b} Despite the Department's January 15th response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. See id. Based on its response, it is uncertain whether the Department possesses records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § 1O (a)(ii). Order Accordingly, the Department is ordered to provide Mr. Kershner with a response to the request, 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, ~ a y ~ Supervisor of Records cc: Seth Kershner