David Jeswald v. Massachusetts Department of State Police (SPR 20202055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2020 SPR20/2055 Christine M. Dowling, Esq. Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of David Jeswald 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, Mr. Jeswald requested all records pertaining to a certain Massachusetts uniform citation issued by the Department. After a copy of the citation was sent to Mr. Jeswald, a follow-up to the request was sent to the Department. As a result of the nonresponse to the follow-up, Mr. Jeswald petitioned this office and this appeal was opened. 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. The Department’s November 3rd Response I learned that the Department provided a response to Mr. Jeswald’s request on November 3, 2020 that informed him that the Department “provided every record that [they] had in [their] 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

Christine M. Dowling, Esq. SPR20/2055 Page 2 November 3, 2020 possession, custody, or control, and explained what records [they] did not have.” Further the Department asserts that it “did not withhold any documents.” Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § 10(a)(ii). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Jeswald