Amy L. Codagnone, Esq. v. Massachusetts Department of State Police (SPR 20201812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 8, 2020 SPR20/1812 Dan Brunelli Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Attorney Amy L. Codagnone appealing the response of the Department of the Massachusetts State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 31, 2020, Attorney Codagone requested: “1. Any and all records including witness statements given in connection with any investigation of criminal activity of Jeffrey Britto; 2. Any and all records containing references to Jeffrey Britto; 3. Any and all correspondence to, from, or referencing Jeffrey Britto; 4. Any and all reports or records pertaining to investigations or interviews prior to, during, or after the investigation of the homicide of Rose Marie Delsie a/k/a Rosemarie Delsie. 5. Any and all reports or records containing references to Rose Marie Delsie a/k/a Rosemarie Delsie…” The Department provided a response on September 11, 2020. Unsatisfied with the Department’s response, Attorney Codagone petitioned this office and this appeal, SPR20/1812, 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). 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

Dan Brunelli, Esq. SPR20/1812 Page 2 October 8, 2020 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 September 11th response, the Department indicates “…please be advised that all record requests related to the above-captioned individual should be directed to the Plymouth County District Attorney’s Office…” In her appeal, Attorney Codagone contends “[t]hat someone else may have controlled an investigation into Ms. Delsie's death does not dictate whether records help by the MSP are releasable pursuant to the Massachusetts Public Records law. Moreover, the records request sought records much more expansive than those solely related to Ms. Delsie's death.” This office encourages the parties to communicate to determine which records Attorney Codagone is seeking. Records in existence 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 of records at the time of the request. See G. L. c. 66, § l0(a)(ii). In light of the issues raised in Attorney Codagone’s appeal regarding the existence of responsive records, and despite the Department’s response, I find it is unclear whether responsive records exist, or existed and were destroyed. The Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion The Department is to provide Attorney Codagone with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to

Dan Brunelli, Esq. SPR20/1812 Page 3 October 8, 2020 send an electronic copy of this response to this office at pre@sec.state.ma.us. The requestor may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Amy L. Codagnone, Esq.