Amy L. Codagnone, Esq. v. Department of State Police - Legal Office (SPR 20211016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2021 SPR21/1016 Daniel Brunelli, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Amy L. Codagnone, Esq. 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). Attorney Codagnone requested various records relating to an identified individual. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. 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

Daniel Brunelli, Esq. SPR21/1016 Page 2 May 4, 2021 The Department’s April 12, 2021 response The Department responded on April 12, 2021, denying Attorney Codagnone’s request in its entirety under G. L. c. 38, § 4, and indicated that she should direct her request to the Plymouth County District Attorney’s Office (DAO). In its April 12th response, the Department posits, “…the district attorney or his law enforcement representatives shall direct and control the investigation of a death within a county.” In addition, the Department informed Attorney Codagnone regarding any additional investigations involving the identified individual with the Department, “I did not locate any in our database.” Attorney Codagnone’s April 20, 2021 petition In her petition, Attorney Codagnone asserts, “[s]imply because one agency is in charge of a matter does not mean that another agency is no longer the custodian of records which it possesses itself. If two agencies possess the same records, they are disclosable by either subject to valid exemptions. There are none here.” Burden of specificity in responding; duty to segregate The Department denied Attorney Codagnone’s request without claiming an exemption to the Public Records Law that would support the withholding of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police ------------------------- Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). In addition, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold under an exemption in the Public Records Law. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying responsive records. Therefore, the Department must identify what type of record(s) it has in its possession that the Department withheld. I find the Department did not meet its burden of specificity in responding to and denying this request. The Department must clarify whether the requested records exist. 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).

Daniel Brunelli, Esq. SPR21/1016 Page 3 May 4, 2021 Conclusion Accordingly, the Department is ordered to provide Attorney Codagnone with a response to her request, in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Codagnone may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Amy L. Codagnone, Esq.