Jeannette Hinkle v. Executive Office of Public Safety and Security (SPR 20221992)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1992 Arielle Mullaney, Esq. Assistant General Counsel Executive Office of Public Safety and Security One Ashburton Place, Room 2133 Boston, MA 02108 Dear Attorney Mullaney: I have received the petition of Jeannette Hinkle, of The Cape Cod Times, appealing the response of the Executive Office of Public Safety and Security (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 25, 2022, Ms. Hinkle requested four categories of records relating to the 2020 Massachusetts Uniform Citation Data Analysis Report. Previous Appeal This request was the subject of a previous appeal. See SPR22/1771 Determination of the Supervisor of Records (August 15, 2022). In my August 15th determination, I closed SPR22/1771 in light of the Office providing a supplemental response on August 8, 2022. Unsatisfied with the Office’s response, Ms. Hinkle 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

Arielle Mullaney, Esq. SPR22/1992 Page 2 September 13, 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. Current Appeal In her appeal petition, Ms. Hinkle specifically describes approximately 30 email chains, and approximately 26 other documents and records, all of which she contends are missing from the Office’s production of responsive records. In support of her appeal, Ms. Hinkle provides detailed information on the subjects, authors, recipients, and various references made to the records she contends are missing. The Office’s Responses In its August 8, 2022 response, the Office provided numerous records to Ms. Hinkle. In an August 9, 2022 email, the Office states that “the document production does not include the email attachments.” In a further email on August 9, 2022, the Office states that “unless noted in the response letter, no responsive emails are withheld from production.” Additionally, the Office states that they will “be in touch with the attachments.” Records in possession, Custody, Control The Office is advised 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). Further, 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). In this case, based on the Office’s response and the information provided in Ms. Hinkle’s appeal petition, it is unclear what additional records the Office possesses that are responsive to Ms. Hinkle’s request. The Office must clarify this. Timeframe for Providing Records Additionally, the Office is advised that, with respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records ... and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi).

Arielle Mullaney, Esq. SPR22/1992 Page 3 September 13, 2022 Consequently, I find the Office must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Ms. Hinkle with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jeannette Hinkle