Craig P. Shibley v. Massachusetts State Police (SPR 20220169)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 8, 2022 SPR22/0169 Allison Mondello Primary RAO Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received a petition from 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 November 11, 2021, Mr. Shibley requested, “[a] catalogue of all records (to include but not limited to: evidence, reports, transcripts, & images) related to the 1951 murder of [an identified] State Trooper.” Previous appeal This request was the subject of a previous appeal. See SPR21/3121 Determination of the Supervisor of Records (December 3, 2021). The Department responded on December 10, 2021. Unsatisfied with the response, Mr. Shibley petitioned this office and this appeal, SPR22/0169, 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 agency or municipality 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

Allison Mondello SPR22/0169 Page 2 February 8, 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. The Department’s December 10th response In its December 10th response, the Department advised, “… the records that you request are in the possession, custody and control of the Worcester County District Attorney’s office.” Based on Mr. Shibley’s appeal, in conjunction with the Department’s response, it is unclear if the Department possesses any records responsive to his 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. 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 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 Allison Hynes, Esq.