Mary Schwager v. Massachusetts State Police (SPR 20190648)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/648 Michael Halpin, Esq. ·~~~-R€G~~.A~Of:ficec1c-r~~~~--~~ Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition from Ms. Mary Schwager, of WHDH-TV, appealing the nomesponse from the Massachusetts Department of State Police (Department) regarding a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Ms. Schwager sent a request to the Department asking for staff inspection reports for the "last two years." In an email on March 27, 2019, Ms. Schwager made an appeal to this office stating the Department has not produced responsive records. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten businyss days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). 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) (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 One Ashburton Place, Room 1719, Boston, Massaehusetts 02108 • (617) 727 2832• Fax: (617) 727 5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Michael Halpin, Esq. SPR19/648 Pg.2 April 10, 2019 burden of establishing the applicability of an exemption). It is unclear if the Department possesses the records requested by Ms. Schwager. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b) (iii). If the records are within the Department's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § lO(b)(iv) (custodian has the burden of establishing the applicability of an exemption). _________ __ ____________ Accordingly,the-DepartmenLisorderedt0-re-viewtherequestsmadehyMs.Schwager--- and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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: Mary Schwager Dan Brunelli, Esq.