Craig P. Shibley v. Massachusetts Department of State Police (SPR 20211973)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 12, 2021 SPR21/1973 Daniel Brunelli, Esq. Staff Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Craig Shibley 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 April 6, 2021, Mr. Shibley requested the following: • The name of the former online database/case management system used by the Department prior to ACISS; • The trooper who uploaded [an identified] case file . . . to ACISS in 2013; • [A] copy of the “PRIMARY INFORMATION” and “CASE STATUS” fields related to this case file. Previous Appeals This request was the subject of previous appeals. See SPR21/1029 Supervisor of Records Determination (April 22, 2021); SPR21/1232 Supervisor of Records Determination (May 25, 2021); SPR21/1541 Supervisor of Records Determination (July 7, 2021). In my July 7th determination, I ordered the Department to provide a supplemental response to Mr. Shibley’s request. Subsequently, the Department provided Mr. Shibley with additional responsive records on August 4, 2021. Unsatisfied with the Department’s response, Mr. Shibley again appealed, and this case 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 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. SPR21/1973 Page 2 August 12, 2021 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 his appeal petition, Mr. Shibley first asserts that certain “archival information (or metadata) must exist within the [Department’s] database” concerning his request. Second, he contends that “[i]t’s impossible to comprehend the region’s largest police force wouldn’t utilize a case management system until 2013! . . . This response must be clarified.” Referred to the Office of the Attorney General As to the first part of Mr. Shibley’s appeal, it is my understanding that the subject matter of this request and the issues raised are similar to those addressed in SPR19/2115 Determinations of the Supervisor of Records (October 29, 2019; December 4, 2019; January 21, 2020) and other related appeals. Please note that on February 5, 2020, I referred this matter to the Office of the Attorney General (AGO) for enforcement. In light of this referral, I decline to provide a determination as to the public status of the requested records at this time pending a resolution to the AGO’s review. No Duty to Create Records, Conduct Research As to the second part of Mr. Shibley’s appeal, please be advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Current Appeal Accordingly, I will consider this administrative appeal closed. If Mr. Shibley is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Daniel Brunelli, Esq. SPR21/1973 Page 3 August 12, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Shibley