Craig P. Shibley v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20200672)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 30, 2020 SPR20/0672 Valerie Connolly Administrative Services Division Secretary of the Commonwealth One Ashburton Place Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Craig Shibley appealing the response of the Administrative Services Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 2, 2020, Mr. Shibley requested: . . . a copy of the DAO’s reply in response to the Division’s October 29, 2019 request ordering a representative sample of the responsive records which was not provided, but rather a new record beyond the purview of the intended purpose of the in camera review. Should the DAO have also provided the Division with an explan[a]tion of its position regarding the applicability of an exemption then this record, likewise, is subject to disclosure - and is requested. I continue to seek the “new record” the Worcester DAO forwarded. These documents, purportedly related to Tpr. Savela’s homicide investigation, neither were the subject of my records request nor your order for an in-camera review. The Division provided a response on April 16, 2020, which included the cover letter submitted along with the records provided to this office for an in camera inspection in a related appeal. Unsatisfied with the Division’s response, Mr. Shibley petitioned this office and this appeal, SPR20/0672, was opened as a result. Related appeals; in camera inspection; AGO referral This request is related to the subject of previous appeals, an in camera review and a subsequent referral to the Office of the Attorney General (AGO). See SPR17/020 Determination of the Supervisor of Records (January 4, 2017); SPR17/027 Determination of the Supervisor of Records (January 12, 2017); SPR17/057 Determination of the Supervisor of Records (January 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

Valerie Connolly SPR20/0672 Page 2 April 30, 2020 23, 2017); SRP20/2115 Determinations of the Supervisor of Records (October 29, 2019; December 4, 2019; January 21, 2020). 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, § 10A(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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its April 16, 2020 response, the Division provided Mr. Shibley with the cover letter that was attached to the records received by this office for an in camera inspection. In his appeal petition, Mr. Shibley states the following: It is my position, and others, that the DAO, by knowingly circumventing this process in an attempt to gain a positive ruling and by your First Assistant Attorney . . . knowingly accepting such documents that were beyond the scope of the intended in-camera review, both parties have unwittingly created a new record. These documents should never have been sent. An in-camera inspection should never have taken place. Nonetheless, both parties conspired to allow the process to move forward despite your clear directive [dated 10/29/19] requiring the DAO to provide an unredacted copy of a representative sample of the responsive records which should demonstrate the extent to which the investigation remains active. . . . This documented sleight of hand has tainted the process by parties knowingly ignoring applicable law and regulations, G.L. c. 66 s.10 and C.M.R. 950 32.08(4).

Valerie Connolly SPR20/0672 Page 3 April 30, 2020 You stated in your order how your office does not release records reviewed in camera to anyone under any circumstances. But you preface the statement by acknowledging a long history of cooperation with governmental agencies with respect to in camera inspection and how custodians submit copies of the relevant records to this office upon a promise of confidentiality. Relevant records were never provided. No expectation of confidentiality exists. New records have been created. . . . Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The public records regulation, 950 C.M.R. 32.08(4), sets forth the provisions that govern in camera inspection of records and the data submitted for such an inspection. The regulation states the following: (a) the Supervisor may require an inspection of the requested record(s) in camera during any investigation or any proceeding initiated pursuant to 950 CMR 32.08. (b) the Supervisor may require the records access officer to produce other records and information necessary to reach a determination pursuant to 950 CMR 32.08. (c) the Supervisor does not maintain custody of documents received from a records access officer submitted for an in camera review. The documents

Valerie Connolly SPR20/0672 Page 4 April 30, 2020 submitted for an in camera review do not fall within the definition of public records. M.G.L. c. 4, § 7(26). (d) upon a determination of the public record status of the documents, they are promptly returned to the custodian, and no copies shall be retained by the Supervisor. (e) any public record request made to the Division for records being reviewed in camera would necessarily be denied, as the office would not be the custodian of those records. 950 C.M.R. 32.08(4)(a)-(e) (emphasis added). The above regulation provides that records submitted for in camera review do not fall within the definition of public records. As such, I find the Division has met its burden under the Public Records Law, and has fulfilled its obligation in responding to this request by providing the cover letter that explained the DAO’s basis for claiming an exemption to withhold responsive records from disclosure. Further, in his appeal petition Mr. Shibley states: Additionally I’m requesting you order the DAO to provide your office a complete custodial indexing of records specific to Trooper Alje Savela’s case file pursuant to C.M.R. 950 32.08 (5) as well as issue an Advisory Opinion on this matter in order to prevent future record custodians from abusing the in camera review process as a means to unduly influence your office. Please note that on February 5, 2020, I referred this matter to the Office of the Attorney General (AGO) for enforcement. See SPR19/2115 Determinations of the Supervisor of Records (October 29, 2019; December 4, 2019; January 21, 2020). Consequently, I decline to take any further action on SPR19/2115 at this time pending a resolution to the AGO’s review. Additionally, please be advised that SPR Bulletin 04-17, sets forth timeframes for the Supervisor of Records to complete reconsiderations of determinations and in camera reviews of records. According to this bulletin, the Supervisor must complete an in camera review of records and issue a written determination regarding the records not later than 15 business days following the Supervisor’s receipt of said records, unless additional time is required. See http://www.sec.state.ma.us/pre/prepra/significant-interest/SPR-Bulletin-04-17-Timeframes-for- Reconsiderations-and-In-Camera-Reviews.htm. Where this office received the records for in camera inspection on November 12, 2019, the December 4, 2019 determination was in compliance with the stipulated timeframe. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Shibley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares

Valerie Connolly SPR20/0672 Page 5 April 30, 2020 jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley