Tom Shiple v. Executive Office of Public Safety and Security (SPR 20232863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 11, 2023 SPR23/2863 Arielle Mullaney Poncia, Esq. Assistant General Counsel Executive Office of Public Safety and Security 1 Ashburton Place, Suite 2133 Boston, MA 02108 Dear Attorney Mullaney Poncia: I have received the petition of Tom Shiple appealing the response of the Executive Office of Public Safety and Security (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2023, Mr. Shiple requested the following records pertaining to traffic stops in Lexington, Massachusetts: [1] [T]raffic stop data for Lexington contained on page 183 of the 2020 Massachusetts Uniform Citation Data Analysis Report[:]… [a] demographic data of motorist: gender, age, race, domicile zip code… [b] stop details: date and time of day, infractions cited… [c] outcome of stop: written warning, civil citation, criminal citation, arrest, search[.] Prior Appeal The requested records were the subject of a prior appeal. See SPR23/2811 Determination of the Supervisor of Records (August 17, 2023). In my August 17th determination, I ordered the Office to provide Mr. Shiple with a response to his request. On November 3, 2023, the Office provided Mr. Shiple with a response that included responsive records. Upon review of the records, Mr. Shiple sent the Office an email, stating, “[h]i Arielle, thanks for sending the aggregate data. My request was for the anonymized data for each of the 800 traffic stops. I would appreciate you forwarding that data.” On November 27, 2023, Mr. Shiple petitioned this office, and this appeal, SPR23/2863, was opened. 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

Arielle Mullaney Poncia, Esq. SPR23/2863 Page 2 December 11, 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) (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). 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 his petition, Mr. Shiple asserts, “[o]n 11/3/2023 I received from Attorney Mullaney [Poncia] of [the Office] aggregate data related to my request, rather than the data of each traffic stop that I requested.” Mr. Shiple further stated, “… the traffic stop data for Lexington contained on page 183 of the 2020 Massachusetts Uniform Citation Data Analysis Report, published by [the Office] . . . Specifically, I’m requesting the following data of the 800 traffic stops in Lexington analyzed in the report:  demographic data of motorist: gender, age, race, domicile zip code;  stop details: date and time of day, infractions cited; and,  outcome of stop; written warning, civil citation, criminal citation, arrest, search. I would prefer the data in a machine-readable format.” Based on the Office’s November 3rd response, in conjunction with Mr. Shiple’s appeal, it is unclear whether the Office possesses the requested information regarding the uniform citation data analysis in Mr. Shiple’s request. 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). 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).

Arielle Mullaney Poncia, Esq. SPR23/2863 Page 3 December 11, 2023 Specifically, the Office must clarify whether it possesses records responsive to Mr. Shiple’s June 20, 2023 request. In addition, it is unclear whether the records can be provided in a machine-readable format, as requested by Mr. Shiple. Please be advised that pursuant to the Public Records Law, “[t]he records access officer shall, to the extent feasible, provide the public record(s) in the requestor’s preferred format or, in the absence of a preferred format, in a searchable, machine readable format.” See G. L. c. 66, § 6A(d). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Shiple with a response to his request, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Tom Shiple