Mara Dolan v. Massachusetts State Police (SPR 20221520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2022 SPR22/1520 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Attorney Mara Dolan appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 23, 2022, Attorney Dolan requested “[a]ny and all unredacted reports of any and all allegations of misconduct of [a named individual], including but not limited to falsifying evidence, perjury, excessive use of force, and/or any abuse of authority.” The Department provided a response on May 24, 2022. Unsatisfied with the response, Attorney Dolan petitioned this office and this appeal, SPR22/1520, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 SPR22/1520 Page 2 July 15, 2022 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 24th Response In its May 24, 2022 response, the Department stated that “[i]n order to receive unredacted copies of the documents you requested, they will have to be subpoenaed from our Legal Department located at 470 Worcester Road in Framingham, MA.” Current Appeal In her current appeal, Attorney Dolan asserts that “I am writing to file an appeal based on non-compliance with the public records law.” Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the above, it is unclear what exemption or legal basis under the Public Records Law the Department is claiming to withhold the responsive records from disclosure. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). 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). As such, I find the Department has not met its burden to withhold the requested records from disclosure. Conclusion Accordingly, the Department is ordered to provide Attorney Dolan 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.

Allison Mondello SPR22/1520 Page 3 July 15, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Mara Dolan, Esq.