Sean Sheridan v. Massachusetts State Police (SPR 20220729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2022 SPR22/0729 Allison Mondello Public Records Manager Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Sean Sheridan appealing the response of the Massachusetts State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 1, 2021, Mr. Sheridan requested records relating to “an accident that occurred on May 15th of [2021] and which was reported upon by a [named police officer] … in Bridgewater …” The Department provided responsive records, including an audio recording of the Department’s dispatchers, on November 12, 2021. On February 21, 2022, Mr. Sheridan requested the “entire audio.” Previous Appeal The audio recording sought by Mr. Sheridan was the subject of a previous appeal. See SPR22/0612 Supervisor of Records Determination (March 29, 2022). There, I ordered the Department to provide a response to Mr. Sheridan. The Department did so on March 30, 2022. Unsatisfied with the substantive nature of the Department’s response, Mr. Sheridan petitioned this office and this appeal, SPR22/0729, 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 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 SPR22/0729 Page 2 April 7, 2022 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. The Department’s March 30th Response On March 30, 2022, the Department stated it “checked with the State Police Middleboro barracks, and they confirmed that you have received the full radio dispatch recording for the specific incident. The numbers reflect the approximate time the radio transmissions began coming in (e.g., 21:11:43) and when they ended (e.g., 22:16:35). This does not mean there will be an hour of conversation via radio for this specific motor vehicle collision.” Current Appeal In his current appeal, Mr. Sheridan stated, “I am not expecting there to be additional conversation about the event but it is imperative that I receive the entire tape so that I can determine WHAT TIME certain things were said and done, such as how long it took to raise the police/EMT in a certain municipality.” In a conversation between a staff attorney with this Division and the Department, the Department stated that it had provided an unabridged version of the audio recording in its original format and that no other longer recording with gaps of silence exists. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the Department does not possess any additional records responsive to Mr. Sheridan’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Sheridan 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 of Massachusetts. See G. L. c. 66, § 10(b).

Allison Mondello SPR22/0729 Page 3 April 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Sheridan