Mikhael El-Bayeh v. Massachusetts State Police (SPR 20230635)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 18, 2023 SPR23/0635 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Mikhael El-Bayeh 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 March 13, 2023, Mr. El-Bayeh requested: [1] Officer’s Copy of Citation/Warning with Officer’s Notes for the listed Citation Numbers below; and [2] General Orders, Rules, Regulations, Guidance, Training Materials, and any other records governing the use of Body Cameras by Department members is effect on August 4, 2021. The Department provided responses on March 16, 2023 and March 29, 2023. Unsatisfied with the responses, Mr. El-Bayeh petitioned this office and this appeal, SPR23/0635, 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. 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 SPR23/0635 Page 2 April 18, 2023 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. The Department’s March 16th and March 29th responses In its March 16, 2023 response, the Department advised Mr. El-Bayeh that they required additional information in order to locate a specific record responsive to his request. Mr. El-Bayeh provided the Department with additional information related to the record. In its March 29, 2023, the Department provided Mr. El-Bayeh with redacted records responsive to his request. Current appeal In his appeal, Mr. El-Bayeh states the following: With regard to Item (1) of the request… [the Department] has unlawfully redacted data fields from the ‘Violator’ and ‘MV’ sections of the 85 responsive citations produced. It is my position that [the Department] cannot meet its burden to show that there is any lawful basis to redact any of the data fields, with the exception of ‘Motor Vehicle License No. Of Violator’ and MM/DD of ‘Birth Date,’ and MSP has asserted none…[.] Based on the Department’s response, it is unclear what exemptions under the Public Records Law it is claiming to redact portions of the records. The Department is advised that 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) (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…”); 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). The Department must clarify this matter. Further in his appeal petition, Mr. El-Bayeh states, “[the Department] has exceeded the 10-day statutory deadline to produce requested Citation Number T2366725. I am requesting that your office order [the Department] to produce this record without further delay.” In its March 16, 2023 response, the Department stated the following: With respect to citation T2366725, the Department requires additional information in order to locate this record. The format of its label indicates that this

Allison Mondello SPR23/0635 Page 3 April 18, 2023 citation was not issued through the CJS computer system, but rather handwritten by the issuing member. Any additional information you can provide related to this ‘paper citation’ would assist us in locating it. 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 Mr. El-Bayeh’s request was submitted on March 13, 2023, and the Department has not provided responsive records, I find that 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 outstanding 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. Consequently, I find the Department did not meet its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh 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.

Allison Mondello SPR23/0635 Page 4 April 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Mikhael El-Bayeh