Joseph E. Solomon v. Massachusetts State Police (SPR 20231590)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2023 SPR23/1590 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 Joseph E. Solomon 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 April 10, 2023, Mr. Solomon requested the following: [C]opies of all public records that relate to a [specified] Former Trooper ... that are in the possession of The Massachusetts State Police, to include but not be limited to: 1. Copy of [his] personnel file 2. Copy of [his] discipline file 3. Copy of [his] training file 4. Copy of [his] private investigators license. 5. Copy of any denials for private investigators license ... 6. Copy of any denials for private investigators license for [a specified company.] Previous Appeal This request was the subject of a previous appeal. See SPR23/1224 Determination of the Supervisor of Records (June 20, 2023). In my June 20th determination, I ordered the Department to provide Mr. Solomon with a response to his request. Subsequently, the Department responded on July 11, 2023, providing numerous responsive records. Unsatisfied with the Department’s response, and claiming the Department possesses additional records, Mr. Solomon 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 SPR23/1590 Page 2 July 25, 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. The Department’s July 11th Response In its July 11, 2023 response, the Department provides numerous records responsive to Mr. Solomon’s request, and states the following regarding Parts 4 and 5 of the request: From the information you submitted it appears that you are seeking a private investigator license; you may redirect your request to the Certification Unit. That is the unit that manages and administers the Commonwealth’s Private Investigator’s Licenses. In his appeal petition, Mr. Solomon clarifies that he is “not seeking a private Investigators license.” Additionally, Mr. Solomon contends that the Department’s “statement in reference to paragraph 4 and 5 is just another stall tactic. Additionally they did not address paragraph 6.” He goes on to argue that “it has been three months to receive their response and it is disappointing to not received these sections.” Possession, Custody, or Control The Department is advised that 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). Further, in accordance with the Public Records Law, custodians are 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). Based on the Department’s response, it is unclear whether the Department possesses additional records responsive to Parts 4, 5, and 6 of Mr. Solomon’s request. If the Department does possess additional records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records,

Allison Mondello SPR23/1590 Page 3 July 25, 2023 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”). Conclusion Accordingly, the Department is ordered to provide Mr. Solomon with a response to his 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: Joseph E. Solomon