Robert K v. Massachusetts Department of State Police (SPR 20212872)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2872 Allison E. Hynes, Esq. Staff Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received the petition of Robert K 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 July 22, 2021, the requestor sought the “. . . personnel file of [named Officer] of the Massachusetts State Police including, but not limited to, promotions, demotions, salary, disciplinary action against [named Officer], complaints, compliments, background check and criminal record, if any.” Previous appeals The request was the subject of previous appeals. See SPR21/2031 Determination of the Supervisor of Records (August 17, 2021); SPR21/2121 Determination of the Supervisor of Records (September 3, 2021); and SPR21/2358 Determination of the Supervisor of Records (September 28, 2021). In my September 28th determination, I found the Department had not met its burden of specificity in withholding responsive records under Exemption (c). Also, I found the Department may withhold certain responsive records from disclosure under Exemption (f), to the extent the disclosure of the records would prejudice an ongoing investigation. G. L. c. 4, § 7(26)(c), (f). Accordingly, I ordered the Department to provide the requestor with a response regarding its Exemption (c) claim. Subsequently, the Department provided a response on October 12, 2021. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR21/2872, 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 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

Allison E. Hynes, Esq. SPR217/2872 Page 2 November 9, 2021 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 October 12th response In its October 12, 2021 response, the Department asserts that it “. . . takes the position that its September 14, 2021 response fulfills the Department’s obligations under M.G.L. c. 66, §10, the Massachusetts Public Records Law. Accordingly, the Department will not be providing any additional information.” In camera inspection In order to facilitate a determination as to the applicability of the Exemption (c) claim made by the Department to withhold responsive records, the Department must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Department’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone

Allison E. Hynes, Esq. SPR217/2872 Page 3 November 9, 2021 under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert K