Jeannette Hinkle v. Executive Office of Public Safety and Security (SPR 20222309)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2022 SPR22/2309 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/EOPSS) 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. [1] Any and all written and recorded communications between any and all EOPSS staff, DOT staff, RMV staff, MPTC staff, Worcester State University employees and Salem State University employees regarding the 2020 Massachusetts Uniform Citation Data Analysis Report and its contents, including, but not limited to, letters, texts, emails, voicemails, and recorded meetings. [2] Any and all draft versions of the 2020 Massachusetts Uniform Citation Data Analysis Report, including suggested edits. [3] Any and all state RFPs for the contract to produce the 2020 Massachusetts Uniform Citation Data Analysis Report, and all responses. [4] Any and all records indicating the amount paid by the state to both Worcester State University and Salem State University for work related to the 2020 Massachusetts Uniform Citation Data Analysis Report. Previous Appeals This request was the subject of previous appeals. See SPR22/1771 Determination of the Supervisor of Records (August 15, 2022) and SPR22/1992 Determination of the Supervisor of Records (September 13, 2022). In my September 13th determination, I ordered the Department to clarify whether it possesses additional records responsive to Ms. Hinkle’s request. Subsequently, 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. SPR22/2309 Page 2 October 24, 2022 the Department responded on October 13, 2022. Unsatisfied with the Office’s response, Ms. Hinkle 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 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 As in her previous appeal, in her current appeal petition, Ms. Hinkle specifically describes approximately 30 email chains, and approximately 26 other documents and records, which she contends are missing from the Office’s production of responsive records. She again provides detailed information on the subjects, authors, recipients, and various references made to the records she contends are missing. The Office’s October 13th Response In its October 13, 2022 response, the Office stated: EOPSS submitted [Ms. Hinkle’s] request to the Executive Office of Technology Services and Security (EOTSS) to run a search. EOTSS conducted a search based off of [Ms. Hinkle’s] request, using the following search terms: 2020 NEAR(8) “Uniform Citation Data” NEAR(8) (Report OR Analysis) EOTSS provided the search results to EOPSS and EOPSS reviewed all of the results and provided [Ms. Hinkle] with the responsive records. Records in Existence; Possession, Custody, or Control 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

Arielle Mullaney, Esq. SPR22/2309 Page 3 October 24, 2022 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). While the Office has stated that it provided all records found using a specific set of search terms, the Office must use its superior knowledge of the records to confirm whether the specific records requested by Ms. Hinkle are in its possession, custody, or control. Specifically, where Ms. Hinkle has provided detailed descriptions of responsive records which she claims are not included, I find it is unclear whether the Office possesses these additional records, and whether a diligent search for the records was conducted. The Office must clarify this. 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