Rosemary Scapicchio, Esq. v. Massachusetts Department of State Police (SPR 20231671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 1, 2023 SPR23/1671 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 Rosemary Scapicchio 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 January 13, 2023, Attorney Scapicchio requested, “[a]ll police reports, police interviews, case reports, 911 tapes, CSI reports and data, videos, all phone searches, all investigative reports, internal report to supervisors, and all 911 calls from [named address] between the dates of July 4, 2007 to July 4, 2008 related to the shooting death investigation of [named individual] on July 4, 2008 at [named address].” The Department provided a response on July 14, 2023. Unsatisfied with the response, Attorney Scapicchio petitioned this office, and this appeal, SPR23/1671, 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, § l0A(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. 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 SPR23/1671 Page 2 August 1, 2023 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 July 14th Response In its July 14, 2023 response, the Department stated, “[b]ased upon the information provided, [the Department] has conducted a diligent search of its records and is unable to locate any responsive records.” Current appeal In his appeal, Attorney Scappichio states, “[t]he information requested is releasable under FOIA…” No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Based on the Department’s response, coupled with Attorney Scappichio’s appeal, it is unclear if the Department possesses any records responsive to the request. 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). The Department must clarify this matter. 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). Conclusion Accordingly, the Department is ordered to provide Attorney Scappichio with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Attorney Scappichio may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison Mondello SPR23/1671 Page 3 August 1, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Rosemary Scapicchio