Craig P. Shibley v. Department of State Police - Office of the Chief Legal Counsel (SPR 20221283)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15, 2022 SPR22/1283 Allison Hynes, Esq. Staff Legal Counsel Office of Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Hynes: I have received the petition of Craig P. 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 March 23, 2022, Mr. Shibley requested records relating to the 1951 death of a Massachusetts State Trooper. Previous Appeals This request was the subject of previous appeals. See SPR22/0817 Determination of the Supervisor of Records (April 22, 2022); SPR22/1050 Determination of the Supervisor of Records (May 16, 2022). The Department responded to Mr. Shibley on May 27, 2022. Unsatisfied with the Department’s response, Mr. Shibley further 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 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 Hynes, Esq. SPR22/1283 Page 2 June 15, 2022 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 May 27th Response In its May 27, 2022 response, the Department advised, “the records Mr. Shibley seeks . . . are in the possession, custody and control of the Worcester County District Attorney’s office. The Department has communicated Mr. Shibley’s requests to the Worcester County District Attorney’s Office multiple times, and the Worcester County District Attorney’s Office has indicated that they will handle all responses to these requests.” Current appeal In his appeal, Mr. Shibley asserts that “the WDAO has stated on record its does NOT possess the targeted records.” In light of Mr. Shibley’s appeal petition and the Department’s response, the Department must clarify whether responsive 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 P. Shibley