Danielle Makosky v. Massachusetts Department of State Police (SPR 20250071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 21, 2025 SPR25/0071 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 Danielle Makosky 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 September 14, 2024, Ms. Makosky requested “any and all internal affairs documents regarding [an identified trooper].” Previous Appeals This request was the subject of previous appeals. See SPR24/3311 Determination of the Supervisor of Records (December 18, 2024) and SPR24/3397 Determination of the Supervisor of Records (January 7, 2025). In my January 7th determination, I found that the Department did not meet its burden of specificity to withhold records under Exemptions (a), (c), and (f) of the Public Records Law. The Department responded on January 7, 2025, providing responsive records to the request. Unsatisfied with the Department’s response, Ms. Makosky appealed, and this case, SPR25/0071, 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. 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 SPR25/0071 Page 2 January 21, 2025 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 January 7th Response In its January 7, 2025 response, the Department states: With the information provided in the request, the Department conducted a diligent search and was able to locate the following responsive record which has been made available to you in My Records Center: Massachusetts Uniform Citation; 897426AC[.] Please be advised that the cruiser [the] Trooper … was operating on September 14, 2024, was not equipped with a Cruiser-Mounted Camera (dash camera). Therefore, the Department is unable to locate any response records in regard to the portion of your request seeking CMC footage. However, out of courtesy, I am including [the Trooper’s] … Body-Worn Camera (BWC) from the two traffic stops he conducted in the time frame in which you are seeking, 1200-1700 hours. Current Appeal In her appeal to this office, Ms. Makosky states: The state police responded, but the body cam footage during my traffic stop was redacted during the time the trooper entered my info in his computer which also blocks the dashboard to see if his cruiser had a dash cam. Is that typical? I only ask because according to department policy, all cruisers have dash cameras so it surprising that his didn’t and I’d love to see footage that supports that claim. … their response … blocks off the only portions of the video that would prove or disprove the presence of a dash camera because department policy states that all cruisers will have dash cams. I would like a completely unredacted copy of the body cam footage when I was pulled over. 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). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977).

Allison Mondello SPR25/0071 Page 3 January 21, 2025 However, in accordance with the Public Records Law, 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). Based on the information provided in Ms. Makosky’s appeal petition, it is unclear whether the Department possesses additional body cam video or dash cam videos. Further, it is unclear whether the Department has redacted any of the video footage provided to Ms. Makosky, since it has not cited any exemption. The Department is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Accordingly, the Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Ms. Makosky 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. Sincerely, Manza Arthur Supervisor of Records cc: Danielle Makosky