Susan Baronoff v. Massachusetts State Police (SPR 20230370)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 9, 2023 SPR23/0370 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Attorney Susan Baronoff 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 December 16, 2022, Attorney Baronoff requested the following records: 1. All records related to [a specified] ballistics analysis and testimony in the case of Commonwealth v. Whittaker White, Middlesex Superior Court No. 1991- 03998, including those pertaining to the Cobra weapon allegedly used by a participant in the homicide of [a named individual] on November 15, 1991. 2. All records related to [a specified] investigation and testimony in the above case, including those pertaining to photos shown by him to [a second named individual]. 3. All other records related to the above case, including those pertaining to any uncharged third party who could have participated in the homicide. Previous Appeal This request was the subject of a previous appeal. See SPR23/0271 Determination of the Supervisor of Records (February 23, 2023). In my February 23rd determination, I ordered the Department to provide Attorney Baronoff with a response to her request. Subsequently, the Department responded on February 23, 2023. Unsatisfied with the Department’s response, Attorney Baronoff appealed, and this case was opened as a result. 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 SPR23/0370 Page 2 March 9, 2023 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. 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. Current Appeal In her appeal petition, Attorney Baronoff contends that “this ‘response’ is unacceptable because it is untimely and contains no information about when a response will be made.” The Department’s February 23rd Response In its February 23, 2023 response, a representative for the Department states the following: We had an issue where we were not being notified of messages from requestors within the system, that has since been brought to our attention and resolved. Unfortunately I do not have an exact time frame of when you should expect a response to your request. The reason for the delay is the high volume of requests that we are receiving, and all requests are processed in the order that they are received. We appreciate your patience while we work through the queue. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a 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

Allison Mondello SPR23/0370 Page 3 March 9, 2023 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). Where Attorney Baronoff submitted her request on December 16, 2022, and the Department has not provided responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to this request in accordance with G. L. c. 66, § 10(b). Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide the responsive records, or provide the specific reasons for withholding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay); see also G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Baronoff 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: Susan Baronoff, Esq.