Mikhael El-Bayeh v. Department of State Police (SPR 20241580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2024 SPR24/1580 Allison Mondello Public Records Manager 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) 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[;], and, 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 SPR24/1580 Page 2 June 10, 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[.] Prior Appeals The requested records were the subject of prior appeals. See SPR24/0190 and SPR24/0966 Determination of the Supervisor of Records (February 5, 2024) and SPR24/0966 Determination of the Supervisor of Records (April 11, 2024). In my April 11th determination, I directed the Department clarify whether it possesses any records responsive to Parts 2 and 3 of his request. The Department provided a response on May 21, 2024, including responsive records. Unsatisfied with the Department’s response, Mr. El-Bayeh petitioned this office, and the current 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. 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 May 21st Response In its May 21, 2024 response, the Department provided responsive records. In a May 21st email to the Department, Mr. El-Bayeh states, “[t]he citations provided do not include Officer’s Notes. Please advise whether the Department intends to comply with this part of my request. It remains unclear whether the Department has responsive records to [Request Number 2] for the AVL data. Can you please clarify?”

Allison Mondello SPR24/1580 Page 3 June 10, 2024 Current Appeal In his petition, Mr. El-Bayeh indicates, “[t]he Department’s May 21st response does not include all requested records. . . . I am requesting the Supervisor take further action to compel a complete response.” 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). 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, based on Mr. El-Bayeh’s petition, the Department must clarify whether any additional records exist, including the Officer’s notes and the AVL data. 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. Sincerely, Manza Arthur Supervisor of Records cc: Mikhael El-Bayeh