Philip A. Bongiorno, Esq. v. Massachusetts State Police (SPR 20190653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/653 Michael B. Halpin, Esq. Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Philip Bongiorno, Esq. 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). Specifically, on March 21, 2019 Attorney Bongiorno requested copies of accident recponstruction reports related to an identified accident. The Department responded on March 25, 2019 by denying access to responsive records. 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 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. Appeal In its March 25th response the Department asserts " ... the report number is 20 l 8-car-194 - it is currently pending court and cannot be released. Try back in three months." 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, Esq. SPR19/653 Page 2 April 10, 2019 Compliance with the requirements ofp roviding a response; specificity Pursuant to the Public Records Law, a records custodian must provide a written response within 10 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 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 of records 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, § IO(b).

Michael Halpin, Esq. SPR19/653 Page 3 April 10, 2019 Based on the Department's March 25th response it is unclear which exemption it is claiming to withhold responsive records, nor is it clear how an exemption applies to allow the records to be withheld in their entirety. G. L. c. 66, § lO(b)(iv); Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). It should be noted that in his request Attorney Bongiorno indicates his office represents the executor of the estate of an individual involved in the accident. As such, Attorney Bongiorno may also have access to the responsive records by another means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). Conclusion Accordingly, the Department is ordered to provide Attorney Bongiorno 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: Philip A. Bongiorno, Esq. Janet Cormier