Laura H. Ortiz v. Massachusetts State Police (SPR 20241891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1891 Allison Mondello Primary Records Access Officer Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Laura Ortiz 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 13, 2024, Ms. Ortiz requested: [1] Any “Carney Letters” or whatever you refer to it as, issued by any of the Massachusetts District Attorneys and/or Attorney General, that waived immunity to any Massachusetts State Police (MSP) Officers, under Carney v. City of Springfield, 403 Mass 604, 609 (1988) and Baglioni v. Chief of Police of Salem, 421 Mass 229 (1993) as well as their notices to MSP Timeline: January 1 2021- June 13, 2024 [2] Accompanying signed District Attorney or Attorney General Waivers issued (from the Massachusetts District Attorney Offices and Attorney General) related to Part 1, that waived immunity to any MSP Police Officers, under Carney v. City of Springfield, 403 Mass 604, 609 (1988) and Baglioni v. Chief of Police of Salem, 421 Mass 229 (1993) Timeline: January 1 2021-June 13, 2024 [3] Accompanying “Further Disclosure” statements regarding any MSP police officer (even former) that MSP or other prosecutors may have filed with court/defense counsel related to Part 1 and 2 after those Police Officers were issued “Carney” letters by the District Attorneys and Attorney General Timeline: January 1 2021-June 13, 2024[.] The Department responded on June 13, 2024. Unsatisfied with the Department’s response, Ms. Ortiz appealed, and this case, SPR24/1891, 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 SPR24/1891 Page 2 July 15, 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. Att’y 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 June 13th Response In its June 13, 2024 response, the Department states, “[p]lease submit your request via our online portal… You would have received an autoreply to your original email from this email address with the link. Please note that we ask all requests to be sent via this online portal for efficient processing.” Pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written. . . . [W]ritten requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). Consequently, where Ms. Ortiz submitted her request via electronic mail, it is unclear why the Department requires that requests be submitted through the portal before producing responsive records. Based on the foregoing, I find that the Department has not met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Ms. Ortiz with a response to her 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.

Allison Mondello SPR24/1891 Page 3 July 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura Ortiz