Laura Carey v. Massachusetts State Police (SPR 20230121)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 3, 2023 SPR23/0121 Allison Mondello Primary Records Access Officer Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Laura Carey Esq., of New England Innocence Project, 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 13, 2022, Attorney Carey requested “[t]he complete investigative file and all records associated with the 1996 murder of [a named individual] … specifically request all reports and notes drafted by [a named individual] of the MSP’s Crime Scene Services Section …” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2851 Determination of the Supervisor of Records (December 28, 2022). In my December 28th determination, I ordered the Department to provide Attorney Carey with a response to the request. The Department provided a response on January 13, 2023, and a further response on January 20, 2023. Unsatisfied with the Department’s responses, Attorney Carey petitioned this office and this appeal, SPR23/0121, 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 town 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. 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 SPR23/0121 Page 2 February 3, 2022 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. 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 January 13th and January 20th responses On January 13, 2023, the Department provided a response indicating that the Department had responsive records. On January 20, 2023, the Department provided a response indicating that majority of the requested records were held by the Suffolk County District Attorney’s Office and Attorney Carey should re-direct her request to the Suffolk County District Attorney’s Office. Current Appeal In her appeal petition, Attorney Carey contends that the Department has a duty to provide responsive records to her request. Possession, Custody, or Control of Public Records Based on the Department’s response it is unclear if it possesses records responsive to the request. The duty to comply with a request 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). The Department must clarify whether it possesses the requested records. To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Department is ordered to provide Attorney Carey 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 this response to this office at pre@sec.state.ma.us.

Allison Mondello SPR23/0121 Page 3 February 3, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Laura Carey Esq.