Mikhael El-Bayeh v. Department of State Police (SPR 20240966)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2024 SPR24/0966 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 Mikhael El-Bayeh appealing the response of the Department of State Police (Department/MSP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2024, Mr. El-Bayeh requested: [1.] Screen recordings of Cruiser #1915 CMC video footage beginning on October 17, 2023 at 12:05:00 and ending at 12:35:00 and beginning on October 29, 2023 at 20:27:00 and ending at 20:57:00, as displayed in Evidence Library showing metadata graphs including GPS speed, consistent with the format provided by [an identified individual] in response to PRR Appeal SPR22‐1960 on September 16, 2022[;] [a.] Consistent with the screen recording provided by [an identified individual], I am requesting that the Department sweep the cursor along the GPS speed graph line so that the screen recording shows the pop‐up box displaying the date, time, and numerical GPS speed values along the graph line, particularly local peak values[;] [b.] If the Department has made any changes to the process by which CMC footage is exported such that the GPS speed metadata can be overlaid on the video footage itself, the Department may provide the video footage with the overlay in lieu of the Evidence Library screen recording[;] [2.] All AVL data available for Cruiser #1915 beginning on October 17, 2023 at 12:05:00 and ending at 12:35:00 and beginning on October 29, 2023 at 20:27:00 and ending at 20:57:00[;] 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 SPR24/0966 Page 2 April 11, 2024 [3.] Officer’s Copy of Citation/Warning with Officer’s Notes for the citations detailed in the attached spreadsheet “Citation Listing 1‐4‐24.pdf[.]” Previous Appeal The requested records were the subject of a previous appeal. See SPR24/0190 Determination of the Supervisor of Records (February 5, 2024). In my February 5th determination, I ordered the Department to provide a response to Mr. El-Bayeh within 10 business days. The Department provided a response on March 7, 2024. Unsatisfied with the response, Mr. El-Bayeh petitioned this office and this appeal, SPR24/0966, 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. See 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 March 7th Response In its March 7, 2024 response, the Department provided a link to records responsive to the request. Current appeal In his appeal, Mr. El-Bayeh stated, “MSP has not provided any responsive records to Part 2 or Part 3 of my request.” Based on Mr. El-Bayeh’s claims, in conjunction with the Department’s response, it is unclear if the Department possesses any records responsive to Parts 2 and 3 of his request. The duty to comply with requests for records extends to those records that exist and are in the

Allison Mondello SPR24/0966 Page 3 April 11, 2024 possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). However, 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). Consequently, the Department must clarify whether any additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. El-Bayeh with a response to the 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. Mr. El-Bayeh 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: Mikhael El-Bayeh