Susan Baronoff v. Department of State Police (SPR 20250383)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 19, 2025 SPR25/0383 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Susan Baronoff, Esq., Baronoff Law Office, 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 31, 2024, Attorney Baronoff requested: [1] All records that include any audit or review of the work of [an identified former Department Chemist], including but not limited to a U.S. Department of Justice audit of the [Department] Crime Lab; [2] All records of work done by [an identified Department Chemist] in the case of Commonwealth v. Whittaker White, Middlesex Superior Court No. 1991-03998, which involved the homicide [of an identified person at a specified address in Malden, MA] on November 15, 1991; and, [3] All [Department] records stored at the Walter E. Fernald State School in the case of Commonwealth v. Whittaker White, Middlesex Superior Court No. 1991- 03998, which involved the homicide of [an identified person at a specified address in Malden, MA] on November 15, 1991. On December 31, 2024, the Department acknowledged Attorney Baronoff’s request, assigning Reference Number P014737-123124 for tracking purposes. On January 24, 2025, the Department provided a response. Unsatisfied with the Department’s January 24th response, Attorney Baronoff petitioned this office, and this case, SPR25/0383, was opened. 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 SPR25/0383 Page 2 February 19, 2025 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. 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 Custodian’s response In its January 24, 2025 response, the Department states, “[p]lease be advised the [Department’s] Public Records Unit processes requests in the order they are received. Due to the high volume of requests we receive daily, we have not yet had a chance to process your request. We appreciate your patience as we diligently work through this high-volume queue.” Current appeal In her petition, Attorney Baronoff asserted, “I am the attorney for Whittaker White, now known as Glorious Allah. On December 31, 2024, I made a records request to the [Department] on his behalf. A copy of the request and the [Department’s] January 24, 2025 statement that the request is in the queue is attached. I have heard nothing further…” 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

Allison Mondello SPR25/0383 Page 3 February 19, 2025 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. G. L. c. 66, § 10(b)(vi). Where Attorney Baronoff submitted her request on December 31, 2024, and the Department has not provided the responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Department must provide Attorney Baronoff with an estimated date as to when it intends to complete the search and provide the responsive records. To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Baronoff with a response to the 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 Baronoff may appeal the substantive nature of the Department’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Susan Baronoff, Esq.