Michael DeLeon v. Massachusetts Department of State Police (SPR 20240797)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0797 Allison Mondello Records Access Officer Massachusetts Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Michael DeLeon 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 June 21, 2023, Mr. DeLeon referred to docket number “1684CR0110,” and requested the following: [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 and which pertain to the above referenced matter; [2. All notes, both handwritten and typed, pertaining to the interview of any witness and/or suspect connected to the above referenced matter and 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 connected to the above referenced matter and which took place on either December 10, 2015 and/or July 18, 2017; [4.] All phone records obtained during the investigation of the above captioned matter; [5.] All victim witness advocate notes, dated December 10, 2015 through the present time, which pertain to the above captioned matter; [6.] All police reports, dated December 10, 2015 through the present time, which pertain to the above captioned matter; [7.] All witness cooperation agreements, dated December 10, 2015 through the present time, which pertain to the above captioned matter [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. 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 SPR24/0797 Page 2 March 28, 2024 Previous Appeals This request was the subject of previous appeals. See SPR23/1768 Determination of the Supervisor of Records (August 15, 2023) and SPR23/3000 Determination of the Supervisor of Records (December 28, 2023). In my December 28th determination, I ordered the Department to clarify whether it possesses records responsive to Mr. DeLeon’s request. Subsequently, the Department responded on January 11, 2024, reiterating that it had forwarded the request to the Suffolk County District Attorney. Unsatisfied with the Department’s response, Mr. DeLeon further appealed, and this case 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 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. The Department’s January 11th Response In its January 11, 2024 response, the Department explains the following: [T]he Department has determined that there are records which may be responsive to your public records request. However, such records are in the possession, custody, and control of the Suffolk District Attorney’s office. The Department has communicated your public records request to the Suffolk DA’s office, which has indicated to the Department that they will respond to it. . . . The Department has referred your request to the Suffolk County District Attorney’s office because the authority of the district attorneys in their respective counties to conduct and control criminal investigations and cases (“administration of the criminal law” and “control of such cases”) is unquestioned. . . .

Allison Mondello SPR24/0797 Page 3 March 28, 2024 M.G.L. c. 66, § 10(a)(ii) requires production of records only where “the public record is within the possession, custody or control of the agency.” Given the operational function that SPDU members perform for the district attorneys as described above, the records that may be responsive to your public records request are in the possession, custody, and control of the Suffolk County District Attorney’s office, and to the extent that these records were created by SPDU members, the members created them only as agents of the Suffolk District Attorney. Possession, Custody, or Control The Department is advised that 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). Based on the Department’s response, it remains unclear whether the Department possesses records responsive to Mr. DeLeon’s request. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Department is ordered to provide Mr. DeLeon 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. Sincerely, Manza Arthur Supervisor of Records cc: Michael DeLeon