Laura Carey v. Department of State Police (SPR 20240707)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 21, 2024 SPR24/0707 Allison Mondello Records Access Officer Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Laura Carey, Esq., of the New England Innocence Project, 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 August 8, 2023, Attorney Carey requested “the full case file associated with the investigation into the July 19, 2001 fire that burned down part of the Theatre Marketplace building in Dennis, MA and the investigation into and prosecution of [an identified person] as the perpetrator of said fire, including but not limited to all police reports, notes, photographs, videos, audio recordings, and emails.” On February 2, 2024, the Department provided Attorney Carey with a response to her August 8, 2023 request. In its February 2, 2024 response, the Department stated, “[t]he [Department] is researching your public records request. Because this request was submitted over 90 days ago, we ask that you reply to this email confirming you are still interested in the Department responding to your public records request. Please be advised this request will be considered closed if the Department does not receive a response from you within 10 business days.” In an email reply to the Department on February 2, 2024, Attorney Carey asserts, “I am still very interested in receiving a response to this request. Can you please give me an estimate on when I will receive one?” After not receiving any further communication or update on her request from the Department, on March 7, 2024, Attorney Carey petitioned this office, and this appeal, SPR24/0707, 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 SPR24/0707 Page 2 March 21, 2024 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 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. 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. Timeless in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Ms. Carey submitted her request on August 8, 2023, it is unclear why the Department has not provided the responsive records. 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). 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Consequently, I find that the Department

Allison Mondello SPR24/0707 Page 3 March 21, 2024 must provide Attorney Carey with a production schedule for the release of the responsive records, and if possible provide the responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Carey with a response to the request, provided 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. Attorney Carey may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Laura Carey, Esq., New England Innocence Project