Mikhael El-Bayeh v. Massachusetts Department of State Police (SPR 20200699)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 13, 2020 SPR20/0699 Siobhan E. Kelly, Esq. Massachusetts State Police Staff Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Kelly: I have received the petition of Mikhael El-Bayeh appealing the nonresponse 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 April 10, 2020, Mr. El-Bayeh requested, “FFY 2019, 2018, 2017, 2016, 2015 STEP Enforcement Activity Reports.” 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, § l0A(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. Current Appeal Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Department is aware of this appeal and intends to provide a response. In a letter to this office dated May 12, 2020 you state, “[g]iven the current public health crisis, many of the Department’s civilian employees who would assist in the gathering of the requested documents are working remotely. I am also working remotely until further notice. During this time I am working with sworn and civilian members to respond to public records as soon as possible.” You 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

SPR20/0699 Siobhan E. Kelly, Esq. Page 2 May 13, 2020 further note, “I intend to provide a response to Mr. El-Bayeh as soon as I am able.” Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as 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: Mikhael El-Bayeh