Craig P. Shibley v. Massachusetts Department of State Police (SPR 20220013)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 18, 2022 SPR22/0013 Keith Paquette, Esq. Staff Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Paquette: I have received the petition of Craig Shibley 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 August 2, 2021, Mr. Shibley requested “the number of homicide cold cases activated since the Unresolved Cases Unit’s formation [and] the victim’s name associated with each unsolved murder and case activation dates.” Previous appeal This request was the subject of a previous appeal. See SPR21/2080 Determination of the Supervisor of Records (August 31, 2021). In my August 31st determination, the Department was ordered to provide Mr. Shibley with a response. Subsequently, the Department provided a response on December 28, 2021. Unsatisfied with the Department’s response, Mr. Shibley petitioned this office and this appeal, SPR22/0013, 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 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 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. SPR22/0013 Page 2 January 18, 2022 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 December 28th response In its December 28, 2021 response, the Department explains, “[t]he Unresolved Cases Unit (UCU) has handled cases under the direction of the following District Attorney’s Office’s: Hampden, Plymouth, Worcester, and Bristol. . . . Each District Attorney’s Office has its own State Police Detective Unit (‘SPDU’). . . . All reports, memos, and other paperwork related to the work performed by the SPDU is kept in office space maintained by the D.A.’s Office. . . . Similarly, Department members assigned to the Unresolved Cases Unit (UCU) are assigned to a district attorney’s office and work under the direction of the district attorney and the SPDU in that district. Pursuant to the UCU’s Standard Operating Procedure (UCU-1), activation of an unresolved case is ‘based on a review of any unresolved case by the District Attorney of jurisdiction, the State Police Detective Unit assigned to that District Attorney’s office, and the Unresolved Cases Unit.’ In addition, UCU -1 provides that ‘[a]ll investigative reports and actions will be documented in ACISS, and any paper files will be stored at the District Attorney’s office or SPDU.’” The Department further explains, “. . . M.G.L. c. 38, § 4 mandates that for all death investigations, ‘[t]he district attorney or his law enforcement representative shall direct and control the investigation of the death and shall coordinate the investigation with the office of the chief medical examiner and the police department within whose jurisdiction the death occurred.’ Given the status of the relationship between the SPDU State Police members and the D.A.’s Office’s described above, the records that may be responsive to your public records request would be in the possession, custody and control of the D.A.’s Office described above, both for those categories of records that are physically stored in the D.A.’s office and those that may be maintained in the electronic ACISS database. Although some of these records were created by SPDU members, the members created them only as agents of the D.A.’s office.” Based on the Department’s response, it is unclear whether it possesses records responsive to this request. 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). The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Mr. Shibley 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

Keith Paquette, Esq. SPR22/0013 Page 3 January 18, 2022 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: Craig Shibley