David Jeswald v. Massachusetts Department of State Police (SPR 20210299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 22, 2021 SPR21/0299 Christine Dowling, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of David Jeswald appealing the response 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). On January 3, 2021, Mr. Jeswald requested the following records: 1. “. . . complaints against [an identified trooper.]” 2. “. . . audio recordings from phone calls between [2 identified individuals] . . . regarding a complaint against [an identified trooper] . . .” 3. “. . . [t]he video and audio showing the conversations between [3 identified individuals] in the lobby of the Framingham department on October 20, 2020.” 4. “. . . a copy of anything regarding [an identified individual] that is in the State Police’s possession.” 5. “[a] list of investigations and outcomes of the cases [an identified individual] handled for IA. 6. “. . . [an identified individual’s] . . . record including complaints against him . . .” The Department responded on January 27, 2021, providing certain records and indicating it did not possess other records. Unsatisfied with the Department’s response, Mr. Jeswald petitioned this office and this appeal, SPR21/0299, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 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 Dowling, Esq. SPR21/0299 Page 2 February 22, 2021 (1976). Accordingly, Mr. Jeswald’s purpose in making the request has no bearing on the public status of any existing responsive records. 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. 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 27th response In its January 27, 2021 response, the Department enclosed records responsive to items 1, 4, and 6. The Department indicated that it did not possess records responsive to items 2 and 5, and directed Mr. Jeswald to refer to a previous response, regarding item 3. In his appeal petition, Mr. Jeswald states the following: “I’ll try to point out areas of my requests that [the Department] ha[s] missed . . . 1. I wanted complaints made against [an identified individual], and I received investigations against him instead. 2. Me and [an identified individual] had phone calls about my complaint. A few in October, and one in December, all of which came from the Department’s lines. Most notably a 30 minute phone [sic] made by [the identified individual] . . . 3. The encounter I had with [two identified individuals] as I handed them my formal complaint was in the front lobby of the Framingham department and if the lobby is recorded, I don’t feel my ability to view these should be restricted. 4. The department’s response to anything in your possession regarding [an identified individual] seems to lack notable known documents such as at the very least my formal complaint against trooper 4478 on 10/20/2020, which even had an excerpt in this very request. 5. [an identified individual’s] cases were meant to imply the citizen response forms

Christine Dowling, Esq. SPR21/0299 Page 3 February 22, 2021 that [he] has handled and which ones were given to IA and the outcomes. 6. I personally handed the department a complaint against . . . on 10/20/2020 within it referring to dangerous driving and rights violations, as well as a face mask violation. . . .” In light of the above, it is unclear if the Department possesses additional records that are responsive to Mr. Jeswald’s request. 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Jeswald with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Jeswald