Joseph F. Hennessey v. Department of State Police (SPR 20250142)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 28, 2025 SPR25/0142 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Attorney Joseph F. Hennessey 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 December 22, 2024, Attorney Hennessey requested the following: [1.] All police reports and supplemental police reports including all reports by [named individuals] and all MSP troopers involved in the incident occurring on August 6, 2024 at approximately 0702am involving [a named individual] [2.] All internal affairs investigation reports conducted [by] any member of the bureau of professional standards regarding the internal affairs complaint filed by [a named individual] [3.] All internal emails, faxes, text messages between all officers regarding the complaint filing against [a named individual] as a result of the above referenced incident. [4.] All internal emails, faxes, memorandums and text messages between [a named individual] Bureau of Professional standard and other officers regarding the incident of Augusts 6, 2024 with [a named individual]. [5.] Copy of all immediate threat letters filed by [a named individual] from January 1, 2023 to present. [6.] All communications between [a named individual] and the Massachusetts County District Attorney’s Office from August 6, 2024 to December 16, 2024. [7.] All communications between [a named individual] of the Bureau of Professional Standards and the Middlesex County District Attorney’s Office from August 6, 2024 to present. 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 SPR25/0142 Page 2 January 28, 2025 The Department responded on January 15, 2025. Unsatisfied with the response, Attorney Hennessey petitioned this office and this appeal, SPR25/0142, 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, § l0A(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 15th response In its January 15, 2025 response, the Department stated, “[Attorney Hennessey’s] request is being researched for potentially responsive records. Regarding item #2 listed above, additional details are needed in order to search for the requested records. Please clarify the subject of the complaint filed by [a named individual] (such as the name of the trooper or other MSP member) and the date on which it was submitted, if known.” Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein.

Allison Mondello SPR25/0142 Page 3 January 28, 2025 G. L. c. 66, § 10(b)(vi). 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). 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), (b)(ii). Where Attorney Hennessey submitted his request on December 22, 2024, and the Department has not provided the responsive records, nor cited an exemption for withholding records, I find that the Department has not met its burden in responding to the request in accordance with G. L c. 66, § 10(b)(vi). Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide any responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Additionally, in its response, the Department is seeking clarification regarding the scope of Item 2 of Attorney Hennessey’s request. Please be advised that it is valid for the custodian of records to suggest a “reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Consequently, Attorney Hennessey is encouraged to provide the Department with the needed clarification regarding the records he seeks. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). Conclusion Accordingly, the Department is ordered to provide Attorney Hennessey with a response to his 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. Attorney Hennessey 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: Joseph F. Hennessey, Esq.