Jennifer McKinnon v. Massachusetts State Police (SPR 20230241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 22, 2023 SPR23/0241 Allison Mondello Primary Records Access Officer Office of the Chief Legal Counsel Massachusetts Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Jennifer McKinnon, of Wiesner McKinnon LLP, appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On November 17, 2022, Ms. McKinnon requested reports and videos related to a specified incident. The Department provided responses on December 2, 2022 and December 7, 2022. Unsatisfied with the Department’s responses, Ms. McKinnon petitioned this office and this appeal, SPR23/0241, 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. 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. 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 SPR23/0241 Page 2 February 22, 2023 The Department’s December 2nd and 7th responses In its December 2, 2022 and December 7, 2022 responses, the Department stated the following: I am confirming that we have received your request that you have submitted on November 17, 2022, and it is currently in the queue for processing. However, please be advised, all requests that come in are put into the queue and responded to in the order they are received. Current appeal In her appeal, Ms. McKinnon states that she is “…writing to appeal the Massachusetts State Police’s failure to produce the public records requested in my public records request placed on November 17, 2022.” Ms. McKinnon further states that “[t]he delay in production of the requested records is causing a substantial hardship and I am requesting that the State Police produce the requested records immediately.” G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. 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 for a municipality the timeframe shall not exceed 25 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). Whereas Ms. McKinnon’s request was submitted on November 17, 2022, and the Department has not provided records responsive to the request, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Department must provide an estimated date as to when it intends to complete the search and provide the records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis.

Allison Mondello SPR23/0241 Page 3 February 22, 2023 Conclusion Accordingly, the Department is ordered to provide Ms. McKinnon 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. Ms. McKinnon may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jennifer McKinnon