Craig P. Shibley v. Department of State Police - Legal Office (SPR 20210046)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2021 SPR21/0046 Keith Paquette, Esq. Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Craig Shibley appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 27, 2020, Mr. Shibley requested the following records: “i. All policy documents related to its formation including the original order to form the Cold Case Unit [CCU]; ii. All related department policies and procedures (past and present); iii. A copy of order to dissolve the [CCU] and/or rename it the Unsolved Case Unit.” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2465 Determination of the Supervisor of Records (December 28, 2020). In my December 28th determination, I ordered the Department to provide Mr. Shibley with a response, in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, the Department provided Mr. Shibley with a response on January 7, 2021. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR21/0046, 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

Keith Paquette, Esq. SPR21/0041 Page 2 January 25, 2021 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. The Department’s January 7th response In its January 7, 2021 response, the Department states that “[b]ased upon the information you have provided, the Department has conducted a diligent search of its records, and was able to locate the Standard Operating Procedure for the Unresolved Cases Unit. The Department has provided you with a copy of this procedure. The Department was unable to locate any further responsive records.” In his appeal petition, Mr. Shibley states the following: The Department has claimed it does not possess any records related to the former Cold Case Unit that up until October’19 had been existence for nearly three decades! This Department continues to be involved in a lengthy accreditation process being conducted by the Massachusetts Police Accreditation Commission (MPAC). I find it unbelievable that it lacks ALL documents related to its existence and the only policy and procedure record in its possession is 19-SM-12, Col. Gilpin’s memo authorizing the name change of the Cold Case Unit to the Unresolved Cases Unit on October 1, 2019. Reasonable description of records sought Please be aware that the request must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.”

Keith Paquette, Esq. SPR21/0041 Page 3 January 25, 2021 (emphasis in original). Id. In Mr. Shibley’s November 27th request, he stated that he was seeking “policy procedures . . .,” “. . . department policy and procedures . . .,” and “a copy of an order. . .[.]” In his appeal petition, Mr. Shibley indicates it is unbelievable that the Department “. . . lacks all documents related to its existence. . .” Based on the foregoing, I find it is unclear which specific records Mr. Shibley is requesting from the Department. Accordingly, if Mr. Shibley seeks specific records regarding the existence of the Cold Case Unit or records related to its accreditation process, Mr. Shibley may wish to clarify his request in order to reasonably describe the requested records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley