Marc Aldana v. Massachusetts State Police (SPR 20190981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/0981 Michael B. Halpin, Esq. Primary RAO Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Halpin: I have received the petition of Marc Aldana 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. Aldana requested "[a]ll police reports of State Trooper Eric Gahagan of the Massachusetts State police pertaining to thermite." The Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemptions (f) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(±), (n). 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. The Department's May 201 h response In support of its Exemption (f) and (n) claims, the Department asserts that "[r]eports and information related to law enforcement investigations of explosives, their use, and the methods 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. SPR19/0981 Page 2 June 4, 2019 and techniques associated with conducting these investigations is exempt from public disclosure." The Department further indicates that "information related to the investigative objectives of solving crimes involving explosives (should it be publicly disclosed) would serve to undermine law enforcement preparedness and implicate security measures designed to protect and patrol essential infrastructure located with the Commonwealth." The Department asserts that its "determination that (n) is appropriate in this instance relates to its concern for potential exposure to planned criminal acts that fall within the purview of the Fire Marshall's Office and/or would tend to essentially frustrate the work law enforcement officials currently ongoing today." The Department's May 22nd response While this appeal was pending, the Department provided another response dated May 22, 2019. In its May 22n response, the Department indicates that "[u]pon further review, the Department has determined that this information falls within the purview of the State Fire Marshall's Office. As such, [Mr. Aldana's] request is being referred to the Department of Fire Services office for handling." Despite the Department's responses, it remains unclear whether it possesses responsive records. 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, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). The Department must clarify this matter. Order Accordingly, the Department is ordered to provide Mr. Aldana 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, Rebecca S. Murray Supervisor of Records cc: Marc Aldana