Elizabeth A. Myers v. Massachusetts Department of State Police (SPR 20200678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2020 SPR20/0678 Keith A. Paquette, Esq. Legal Counsel Department of State Police 470 Worcester, MA Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Elizabeth Myers appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on July 24, 2019, Ms. Myers requested the “…[p]olice report on my son’s death.” The Department responded on April 2, 2020, indicating they would release the report once she signed a release. Unsatisfied with the Department’s response, Ms. Myers petitioned this office and this appeal, SPR20/0678, 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, § 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. 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

Keith A. Paquette, Esq. SPR20/0678 Page 2 May 6, 2020 The Department’s April 2nd response In its April 2nd response, the Department indicates “the police report is complete at this time. However, per our Department protocol we do not release reports relating to death investigations without a release being executed…[o]nce you execute the release, I will send you the report.” In her appeal, Ms. Myers appeals the Department’s response based on their “decision that the department does not consider the subject document(s) to be public records under the Massachusetts Public Records Acts.” Based on the Department’s response, it is unclear what exemption the Department is claiming to withhold the requested records. See G. L. c. 66, § 10(b)(iv) (when withholding requested records, a records custodian is required to provide a response that identifies “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”). Conclusion Accordingly, the Department is ordered to provide Ms. Myers with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soons a practicable. 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: Elizabeth Myers