Jessica L. LaClair v. Department of State Police (SPR 20232901)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 15, 2023 SPR23/2901 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Jessica L. LaClair, Esq., of the Law Office of Jessica LaClair, appealing the response of the Massachusetts 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 November 3, 2023, Attorney LaClair requested the following: 1. Written notification of whether I am a “data subject.” 2. All data maintained by your agency of which I am a data subject in a form comprehensible to me. On November 17, 2023, the Department responded by providing a web link which included an electronic form to submit a records request. Unsatisfied with the Department’s response, Attorney LaClair petitioned this office and this appeal, SPR23/2901, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 SPR23/2901 Page 2 December 15, 2023 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 November 17th response In its November 17, 2023 response, the Department stated the following: Thank you for your email to the Massachusetts State Police Public Records Unit. Please be advised that the Massachusetts Department of State Police has implemented a new process for members of the public and members of the press requesting public records: If you are a member of the public, press, or a non- prosecuting attorney, and would like to submit a request for public records to the Massachusetts Department of State Police, please do so at the following web page: https://www.mass.gov/forms/request-public-records-online-from-the- massachusetts-state-police. Please ensure that you have included the following information in your request, as applicable: Subject name and their date of birth, Date, time, and location of incident. If a fee is associated with your request, the estimated cost for the production of the requested records, and a request for prepayment, shall be forwarded to you. Please note that any public record requests sent to this email address (MSPPublicRecords@pol.state.ma.us and/or MSP.RAO@pol.state.ma.us) may not be received in a timely manner. As such, it is strongly advised that all public record requests be submitted to the web page linked above for expedited processing. Current appeal In her current appeal Attorney LaClair, stated: I submitted the attached public records request to the Mass. State Police. MSP has not responded to my request. However, I did receive an automated email advising me to submit my request through a state website that requires me to “agree” to terms and conditions that include electronic monitoring of my phone and whereabouts. I replied to that email stating that I was not willing to agree to the terms and conditions of their website. I would like to appeal the MSP failure to comply with the public records law. Particular Form for Request Pursuant to 950 C.M.R. 32.06(1), requests for public records are described below: (a) requests for public records may be made orally in person to a records access officer or custodian or may be written. Telephone requests may be accepted at the

Allison Mondello SPR23/2901 Page 3 December 15, 2023 discretion of the records access officer. (b) requests for public records shall include a reasonable description of the requested record to the records access officer so that he or she can identify and locate it promptly. (c) written requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access. (d) a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters. In this case, while the Department has made its on-line portal available to submit public records requests, the Department has not required use of the portal in order for Attorney LaClair to submit her request. Accordingly, I find that the Department has complied with the requirements of 950 C.M.R. 32.06(1)(a)–(d). However, based on the Department’s November 17th response, it remains unclear whether the Department possesses records responsive to the 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). Further, “[a] records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request . . .” See G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Attorney LaClair 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 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. Attorney LaClair may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Allison Mondello SPR23/2901 Page 4 December 15, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jessica L. LaClair, Esq.