Amy L. Codagnone, Esq. v. Massachusetts Department of State Police (SPR 20202377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2020 SPR20/2377 Christine M. Dowling Staff Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: 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 November 20, 2020, Attorney Codagnone requested: “1. Any records of witness statements given in connection with the investigation of the shooting in 2005 or 2007 of David Gomes; 2. Any and all records including witness statements given in connection with any investigation of criminal activity of David Gomes; 3. Any and all records containing references to David Gomes; 4. Any and all correspondence to, from, or referencing David Gomes; 5. Any and all reports or records pertaining to investigations or interviews prior to, during, or after the investigation of the homicide of David Gomes.” The Department provided a response on December 1, 2020. Unsatisfied with the Department’s response, Attorney Codagone petitioned this office and this appeal, SPR20/2377, 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

Christine M. Dowling, Esq. SPR20/2377 Page 2 December 15, 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 December 1st response, the Department states “[p]lease be advised that this incident was investigated by the Plymouth County District Attorney’s Office which, pursuant to G.L. c. 38, § 4, is the primary investigative agency of unattended deaths investigations. Accordingly, please direct your request, and all future requests regarding this matter, to ADA Keith Garland, Records Access Officer at the Plymouth County District Attorney’s Office…” Subsequent to the opening of this appeal, the Department provided a response on December 7, 2020, indicating “[i]t is the Department’s position that the requested records are in the possession, custody and control of the Plymouth County District Attorney’s Office.” Attorney Codagnone responded to the Department’s December 7th email stating “[t]he records request is far more expansive than one single investigation and relates to any reports or investigations into Mr. Gomes, whether charged, uncharged, relating to his homicide in 2007 or not related…such records or reports would not be given to me by the District Attorney's Office in Plymouth. That is why the request was directed to the state police.” Attorney Codagnone indicates “I am renewing my request for the Massachusetts State Police to conduct a search of its records and to provide those to me, whether or not they were separately provided to the district attorney's office.” On December 9, 2020, the Department provided a response to Attorney Codagnone indicating they are reviewing their systems for reports, and asked Attorney Codagnone to clarify the time period of her request. Conclusion Whereas the basis of this appeal was opened as a result of the Department’s December 1st response, I will now consider this administrative appeal closed. This office encourages the parties to continue to communicate to determine which records Attorney Codagnone is seeking.

Christine M. Dowling, Esq. SPR20/2377 Page 3 December 15, 2020 If issues remain unresolved, Attorney Codagnone may appeal the substantive nature of the Department’s December 9th 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.