Michael DeLeon v. Massachusetts Department of State Police (SPR 20233000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/3000 Allison Mondello Public Records Manager Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello, I have received the petition of Michael DeLeon appealing the nonresponse 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 July 21, 2023, Mr. DeLeon requested the following concerning a specified case: [1] All notes, both handwritten and typed, pertaining to the interview of any witness and/or suspect dated December 10, 2015 through the present time; [2] All notes, both handwritten and typed, pertaining to the interview of any witness and/or suspect which took place on either December 10, 2015 and/or July 18, 2017; [3] All audio records and/or transcripts pertaining to the interview of any witness and/or suspect which took place on either December 15, 2015 and/or July 18, 2017; [4] All phone records obtained during the investigation of this matter; [5] All victim witness advocate notes, dated December 10, 2015 through the present time; [6] All police reports, dated December 10, 2015 through the present time; [7] All witness cooperation agreements, dated December 10, 2015 through the present time; and [8] All incentives provided to any and all witnesses, including but not limited to, whether any such witnesses were provided with funds and/or stipends to assist with moving, housing, and/or living expenses. Previous Appeal This request was the subject of a previous appeal. See SPR23/1768 Determination of the 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 SPR23/3000 Page 2 December 28, 2023 Supervisor of Records (August 15, 2023). In my August 15th determination, I ordered the Department to provide Mr. DeLeon with a written response. Subsequently, the Department responded on November 9, 2023, seeking clarification of the request, and again on December 1, 2023, indicating that the Department had forwarded the request to the Suffolk County District Attorney. Unsatisfied with the Department’s response, Mr. DeLeon appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. DeLeon’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 December 1st Response In its December 1, 2023 response, the Department states the following: [P]ursuant to G.L. c 38 s. 4, the “district attorney or his law enforcement representative shall direct and control the investigation of [a] death” within their jurisdiction. In this instance, as a result, [Mr. DeLeon’s] request is being forwarded to the Suffolk County District Attorney’s Office, which has indicated they will respond to the request.

Allison Mondello SPR23/3000 Page 3 December 28, 2023 Possession, Custody, or Control The statute cited by the Department, G. L. c. 38, § 4, concerns the duties of District Attorneys and Medical Examiners in the investigation and transportation of bodies in cases of unnatural or suspicious death. It is uncertain how this statute applies in this matter. Additionally, it is unclear from the Department’s response if it possesses the requested records. The duty to comply with a request 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). The Department must clarify whether it possesses the requested records. If it does possess them, the Department is advised that it must not only cite an exemption for withholding the records, but must also state why the exemption applies to the withheld or redacted portion of the responsive records. G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the Department is ordered to provide Mr. DeLeon 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: Michael DeLeon