Jenn Bussell v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1114 Jennifer M. Staples, Esq. Records Access Officer Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Jenn Bussell 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 June 9, 2019, Ms. Bussell requested: • “Reports and affidavits filed by MA State Police investigative officer(s) assigned to the case • Crime scene photos taken by MA State Police at [a named] Rd Winchester MA, including the interior and exterior of the home and surrounding property (e.g. front and rear walk-ways, driveway, sidewalk, front yard, rear yard, side yards) • Transcripts of witness interviews conducted by MA State Police with PII (personally identifiable information) redacted per MA law.” 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(d)(iv) (written response must “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…”); 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). 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

Jennifer M. Staples, Esq. SPR20/1114 Page 2 July 17, 2020 The Department’s June 26th response The Department responded on June 26th indicating, “… the Middlesex County District Attorney’s Office and State Police detectives assigned to that office are handling the case investigation. Accordingly, the Department forwarded your request to that office; specifically, ADA Daniel DeBlander, for a response.” Burden of specificity in responding and claiming exemptions Under the Public Records Law, the burden shall be on the custodian to cite with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv) (written response must "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 ... "); see also Globe Newspaper - - - Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511 (custodian has the burden of establishing the applicability of an exemption). The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The Department’s June 26th response did not contain the specificity required in a denial of access to public records. The Department must identify what records it has in its possession, custody or control that are responsive to Ms. Bussell’s request. As a result, I find that the Department did not satisfy its burden in responding to this records request. Order Accordingly, the Department is ordered to provide Ms. Bussell with a response to the request, provided 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: Jenn Bussell