Edward S. O'Brien v. Massachusetts State Police (SPR 20221616)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 21, 2022 SPR22/1616 Allison Mondello Primary Records Access Officer Department of State Police Office of the Chief Legal Counsel 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Edward S. O’Brien 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 November 22, 2021, Mr. O’Brien requested “…all memos, police reports, police interviews, affidavits, indexes, station reports, case reports, and witness interviews that was conducted by the Somerville Police Department, Massachusetts State Police, Middlesex County District Attorney’s Office and the Middlesex County District Attorney’s Office CPAC unit…from July 23, 1995 to the date of this request is being sought.” Previous Appeals This request was the subject of previous appeals. See SPR21/3336 Determination of the Supervisor of Records (January 6, 2022) and SPR22/1331 Determination of the Supervisor of Records (June 17, 2022). The Department responded on June 15, 2022. Unsatisfied with the response, Mr. O’Brien petitioned this office and this appeal, SPR22/1616, 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). 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 SPR22/1616 Page 2 July 21, 2022 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); 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 June 15th Response In its response, the Department stated “…the Middlesex District’s Attorney’s Office is taking over this request and will be providing you a response.” Based on the Department’s response, it is unclear if the Department possesses any records responsive to the 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 responsive records exist. Conclusion Accordingly, the Department is ordered to provide Mr. O’Brien 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. Mr. O’Brien may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Edward S. O’Brien