Jeffrey G. Harris v. Massachusetts Department of State Police (SPR 20240767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 25, 2024 SPR24/0767 Allison Mondello Public Records Manager Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Jeffrey G. Harris, Esq., of The Law Offices of Jeffrey G. Harris, 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 February 23, 2024, Attorney Harris requested: All documents and materials, including and without limitation any records of fingerprints taken, witness statements, handwritten or typographic notes, books, pamphlets, periodicals, letters, reports, memoranda, records, minutes, studies, compilations, analyses, tabulations, maps, diagrams, drawings, plans, pictures, summaries, working papers, charts, papers, draft index, data sheets, data processing cards, computer runs, summary of computer runs, computer tapes or disks, tapes, contracts, leases, ledgers, journals, balance sheets, account invoices, purchase orders, receipts, billing records, files, diaries, calendars, handbooks, policy handbooks, films, trip tickets, telex, teletype or telephone messages, expense vouchers, instructions, bulletins, audio or video recordings, or other messages or writings (Materials) relating to the November 2006 murder of . . . (the Pina Homicide) in Brockton. On February 29, 2024, the Department provided Attorney Harris with an acknowledgment of his request, indicating, “[t]he [Department] received your public records request on February 23, 2024 … Please be advised the Public Records Unit processes requests in the order they are received. Due to the high volume of requests we receive daily, we have not yet had a chance to process your request. We appreciate your patience as we diligently work through this high-volume queue … If the Department determines, given the nature and volume of records being requested, that a fee assessment is necessary, the estimated cost for the production 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 SPR24/0767 Page 2 March 25, 2024 requested records, and a request for prepayment, will be calculated and forwarded to you. . . . You will receive an email notification when the [Department] has provided a response to your request. Your request has been assigned the following reference number for purposes of tracking your request: P002384-022324.” On March 4, 2024, Attorney Harris emailed the Department to follow-up on his February 23rd request, stating, “[p]lease confirm receipt and let me know what the timetable is for disclosure of the [Department’s] records from this investigation. Ten days have passed; I have received no records.” In his March 4th follow-up email, Attorney Harris sent the Department another copy of his request, attaching some of the Department’s Crime Lab records. On March 11, 2024, after not receiving any further response or any of the responsive records, Attorney Harris petitioned the Supervisor of Records, and this appeal was opened. 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. Timeliness 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

Allison Mondello SPR24/0767 Page 3 March 25, 2024 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 Attorney Harris submitted his request on February 23, 2024, 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 must provide Attorney Harris 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 Harris with a response to her 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 Harris 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: Jeffrey G. Harris, Esq.