Dennis Shedd v. Massachusetts Department of State Police (SPR 20211127)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2021 SPR21/1127 Keith Paquette, Esq. Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Dennis Shedd, Esq. appealing the response of the Massachusetts 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 March 22, 2021, Attorney Shedd requested numerous records pertaining to an identified Department case. Previous Appeal This request was the subject of a previous appeal. See SPR21/1058 Determination of the Supervisor of Records (May 3, 2021). In my May 3rd determination, I found the Department had provided a response on April 29, 2021. Where the basis of the appeal was opened as a result of the Department’s lack of response to Attorney Shedd’s request, I considered the administrative appeal closed. Unsatisfied with the Department’s April 29th response, Attorney Shedd petitioned this office, and SPR21/1127 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 (1976). Accordingly, Attorney Shedd’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial 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. SPR21/1127 Page 2 May 14, 2021 Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Attorney Shedd may wish to consider another means of seeking to obtain 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. The Department’s April 29th response In its April 29th response, the Department states “…any records relating to the murder of Quintin Koehler would be in the possession, custody and control of the Middlesex District Attorney’s office. The Department has communicated your public records request to the Middlesex DA’s office, which has indicated to the Department that they will respond to it.” The Department indicates, “…each district attorney’s office has its own State Police Detective Unit (‘SPDU’) and pays annually for any overtime performed by MSP Troopers assigned to that SPDU. Each Trooper assigned to the SPDU reports to an office space maintained by the district attorney. The district attorney provides each Trooper in its SPDU a cell phone, email address, and computer... [a]ll reports, memos, and other documentation related to the work performed by the SPDU is kept in office space maintained by the district attorney. The SPDU members’ schedules are determined by the work the SPDU is performing at the time for the district attorney’s office. Strategy and investigative plans are coordinated with the district attorney, not the Massachusetts State Police. The drafting, reviewing, and approval of all investigative reports is completed within the SPDU and does not require additional oversight by the Department.” Attorney Shedd contends “…the fact that some members of the state police who were involved in this investigation have offices and use certain equipment provided by the Middlesex

Keith Paquette, Esq. SPR21/1127 Page 3 May 14, 2021 District Attorney…does not suggest that the state police does not haven possession, custody, and control of those documents.” Attorney Shedd posits “[f]irst, in the same way that documents in an office I rent are deemed to be in my possession, documents in an office utilized by state police officers are in the possession of the state police. The fact that the district attorney has provided the office is irrelevant. Second, possession of documents may be joint. The state police have not suggested that its officers, once having obtained and prepared documents, subsequently have no access to them…[t]hird, while the state police have claimed that responsive documents are in offices provided by the district attorney, it has not claimed that its central records department does not have a copy of those documents. Those documents would also be in the possession, custody, and control of the state police, and it would be required to produce them pursuant to a public request.” Records in existence 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). Despite the Department’s response, I find it is unclear whether responsive records exist, and if they do, why they have not been provided. The Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Department is ordered to provide Attorney Shedd 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: Dennis Shedd, Esq.