Joseph F. Hennessey v. Massachusetts Department of State Police (SPR 20202401)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 16, 2020 SPR20/2401 Jennifer M. Staples, Esq. Chief Legal Counsel Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Staples: I have received the petition of Attorney Joseph Hennessey 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 October 28, 2020, Attorney Hennessey requested: 1. “Any Mass. State Police, Worcester Police incident report, daily log, summary, IDC reports or supplemental police reports submitted by either the Worcester Police or Mass. State Violent Fugitive Apprehension unit or the K-9 unit that came in contact with [an identified individual] on April 10, 2019 at [a specified address].” 2. “Copy of any search warrant, search warrant affidavit and search warrant return for [a specified address] in connection with the entry, raid and search of this apartment on April 10, 2019.” 3. “A copy of any citation, complaint and warrant for the intended target, [an identified individual], used on April 10, 2019 to obtain entry of [a specified address].” 4. “Any photographs or videos taken of the interior of [a specified address] on April 10, 2019 at the time of entry and exit by the MSP.” 5. “Daily logs/rosters or daily journal of any Mass state police officers that were present at [a specified address] on April 10, 2019, i.e., the names of all members of the violent fugitive apprehension task force, names of members of the Mass State Police STOP unit and the names of members of the canine unit.” 6. “List the full name of law enforcement officers from any other municipal police departments that assisted the MSP on April 10, 2019 at the entry and search of [a specified address].” 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. SPR20/2401 Page 2 December 16, 2020 7. “Any use of force reports prepared by any law enforcement agencies or employees or agents from the Mass State Police for the entry and search of [a specified address] on April 10, 2019.” 8. “Any K-9 search reports prepared by any agency associated with the entry and search of [a specified address] on April 10, 2019.” 9. “Any statements or summaries of statements provided by [an identified individual] or civilian in connection with the police entry of [a specified address] on April 10, 2019.” 10. “Any radio dispatches or 911, telephone calls and text messages between the Mass State and the Worcester Police Dispatcher regarding the MSP entry into [a specified address] on April 10, 2019.” 11. “Any internal investigations or commander investigations in connection with the unlawful entry and search of [a specified address] on April 10, 2019.” 12. “Any and all supplemental reports submitted by any officer/trooper participating in the entry and search of [a specified address] on April 10, 2019.” 13. “Any policies of the MSP in connection with the Violent Fugitive Apprehension Task Force and SP SWAT or Tactical units from January 1, 2014 to the present associated with the entry of any residence for the purposes of serving an arrest warrant, search warrant, and/or search of a wanted person.” 14. “Please provide the list of internal investigations (referred to as a concise officer history of each officer present in the search at [a specified address] on April 10, 2019.” 15. “All records of any entry into homes by the SP Fugitive Unit without a search warrant from January 1, 2010 to present.” Claiming to not yet have received a response, Attorney Hennessey petitioned this office and this appeal 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). 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.

Jennifer M. Staples, Esq. SPR20/2401 Page 3 December 16, 2020 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. Order Despite being notified of the opening of this appeal, the Department has yet to provide a response with respect to Attorney Hennessey’s request. Accordingly, the Department is ordered to provide Attorney Hennessey with a response to the request, provided 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 send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Hennessey 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: Attorney Joseph Hennessey