Dennis Shedd v. Massachusetts Department of State Police (SPR 20211326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2021 SPR21/1326 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Attorney Dennis Shedd 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 various records pertaining to an identified Department case. Previous Appeals This request was the subject of previous appeals. See SPR21/1058 Determination of the Supervisor of Records (May 3, 2021); SPR21/1127 Determination of the Supervisor of Records (May 14, 2021). In my May 14th determination, I found it was unclear whether responsive records exist. The Department was ordered to provide Attorney Shedd with a response to the request in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided said response on May 26, 2021. Unsatisfied with the Department’s response, Attorney Shedd petitioned this office and SPR21/1326 was opened as a result. Purpose of request; identity of requestor 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 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. 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 M. DeBlander, Esq. SPR21/1326 Page 2 June 10, 2021 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. Current appeal In its May 26th response, the Department states, “[t]he Department takes the position that the response provided to you on April 29, 2021 fulfills its obligations pursuant to M.G.L. c. 66, §10, the Massachusetts Public Records Law. Referring your request to the Middlesex District Attorney’s Office, which has possession, custody, and control of the records, is in no way an attempt to limit the scope of the public records law. The Department has not made any determination about the availability of the requested records. Rather, the Department is merely ensuring that the determination as to the production of the requested records is made by the appropriate agency, the Middlesex District Attorney’s Office, who will be responding to your request.” Subsequent to the opening of this appeal, on June 4, 2021, the Department provided a response by the Middlesex District Attorney’s Office (Office/MDAO) in response to Attorney Shedd’s request. In its response, the Office states “…we maintain that the MDAO is the appropriate agency to respond to any outstanding or future requests concerning this matter.” The Office further states “…given the proffer of ongoing discovery and the specific items already provided to date, we request that all pending Public Records requests and appeals with the Supervisor of Records be closed at this time.” In his appeal, Attorney Shedd contends the Office has not produced all records responsive to the request. Specifically, Attorney Shedd states. “Item 4:... this item also requested notes of the interview. [An identified individual] attended the interview, and while notes he prepared in 2012 have been produced, notes of this 2014 interview have not. Items 6 and 7: I have the reports and photographs taken by [an identified individual] which are cited in the district attorney’s response. However, [an identified individual] also went to [an identified address]. If he took any notes or photographs or prepared any reports, those have not been produced.”

Daniel M. DeBlander, Esq. SPR21/1326 Page 3 June 10, 2021 Additional Responsive Records 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). Based on Attorney Shedd’s petition, it is unclear if the Office possesses additional records responsive to the request. The Office must clarify this matter. Conclusion Accordingly, the Office 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. Keith Paquette, Esq.