Sean Sheridan v. Department of State Police - Office of the Chief Legal Counsel (SPR 20221207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2022 SPR22/1207 Allison Mondello Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Sean Sheridan 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 April 12, 2022, Mr. Sheridan requested “the name rank and contact information for a person driving a k9 unit … who responded to a car crash scene and appears to have been first on scene on [an identified date] … at approximately 9:00pm near the merge point of 495 N onramp onto 24N in Bridgewater, MA.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1098 Supervisor of Records Determination (May 23, 2022). In my May 23rd determination, I closed SPR22/1098 in light of the Department providing a response on May 13, 2022. Unsatisfied with the Department’s response, Mr. Sheridan 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 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. Att’y 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 SPR22/1207 Page 2 June 7, 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 May 13th Response In its May 13, 2022 response, the Department states that it “has conducted a diligent search of its records and is unable to locate any responsive records. Further, the information [Mr. Sheridan is] requesting would be contained in the crash report and/or administrative journal extract which was provided to [him] by Samson Puma on November 12, 2021, referenced as 2021-PRR-31095.” In his appeal petition, Mr. Sheridan contends that “unless the MSP has made an error in [their] search for information the audio provided does not match the report given here.” Records in Existence Please note that 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, in accordance with the Public Records Law, 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). In a phone conversation with this office on June 6, 2022, the Department confirmed that it does not have additional records responsive to Mr. Sheridan’s request. The Department explained that it is not clear from the audio file referenced above that a person driving a K-9 unit would have actually been the first on scene. The Department further explained that if it did in fact possess the requested information, such information would have been contained in the crash report that was previously provided to Mr. Sheridan. Conclusion Where the Department confirmed that it does not possess additional records responsive to Mr. Sheridan’s 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. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Allison Mondello SPR22/1207 Page 3 June 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sean Sheridan