MSP incident reports re: June 19 shooting

Shawn Musgrave filed this request with the Massachusetts State Police of Massachusetts.

It is a clone of this request.

Tracking # 15-541
Status
Rejected

Communications

From: Shawn Musgrave

To Whom It May Concern:

Pursuant to the Massachusetts Public Records Law, M.G.L. c.66, §10, I hereby request the following records:

All incident reports for the suspect chase and shooting on Friday, June 19, 2015 along the Esplanade and Silber Road footbridge over Storrow Drive.

I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.

In the event that fees cannot be waived, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 calendar days, as the statute requires.

Sincerely,

Shawn Musgrave

From: Massachusetts State Police

The request has been rejected, with the agency stating that the information or document(s) requested are exempt from disclosure.

From: Shawn Musgrave

Supervisor of Records
Office of the Secretary of the Commonwealth
McCormack Building, Room 1719
One Ashburton Place
Boston, MA 02108

To Whom It May Concern:

This is an appeal for the rejection in full of my request to the Massachusetts State Police for an incident report. In rejecting my request in full,

On June 25, 2015, I submitted a request to MSP for the following documents:

"All incident reports for the suspect chase and shooting on Friday, June 19, 2015 along the Esplanade and Silber Road footbridge over Storrow Drive."

In MSP's attached response, the agency rejected my request in full. Their letter indicates that the incident in questions "remains the subject of an ongoing investigation," and invokes exemption (f) to justify withholding the document in full. The cited exemption (f) to the Massachusetts public records law protects "investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest."

MSP's response is insufficient for withholding the requested documentation along two lines. First, MSP fails to provide specific justification and explanation as to how the cited exemption applies. The MSP rejection letter indicates that the relevant incident is part of an ongoing investigation, but does not elaborate further as to how this meets the threshold for materials the disclosure of which "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." The MSP letter fails to meet the basic requirements incumbent upon an agency that denies a records request.

The MSP's rejection of my request under exemption (f) also fails to recognize the nature of the requested document. The requested incident report documents a factual account as recorded by MSP officers on the scene. The incident in question has already been made public by media coverage and public statements by MSP itself. Many of the facts contained in the requested incident report are undoubtedly identical to those already made public.

As the Supervisor of Records advises in the guide to public records (see http://www.sec.state.ma.us/pre/prepdf/guide.pdf): "Exemption (f) does not, however, create a blanket exemption for all records that investigative officials create or maintain. A records custodian must demonstrate a prejudice to
investigative efforts in order to withhold requested materials. Accordingly, a records custodian may withhold any information relating to an ongoing investigation that could potentially alert suspects to the activities of investigative officials. [....] Generally, a police incident report may be released to a requester after the records custodian has redacted the exempt portions from the record, such as, medical information and witness statements."

In response to the present request, MSP is inappropriately attempting to invoke exemption (f) as a blanket exemption. As many portions of the requested incident report are undoubtedly already public, it is inappropriate for MSP to withhold the incident report in full. While some portions may be exempt as part of the ongoing investigation, MSP must redact these portions and release the remainder of the document.

In light of the above, I request that you remand this request back to MSP for good faith review and provision of the requested document.

Respectfully,
Shawn Musgrave
Reporter, MuckRock

From: Shawn Musgrave

Apologies - I did not attach MSP's response letter. Please find the June 29 letter attached.

Best,
Shawn

From: Massachusetts State Police

A letter stating that the request appeal has been received and is being processed.

From: MuckRock.com

To Whom It May Concern:

I wanted to follow up on the following Freedom of Information request, copied below, and originally submitted on June 25, 2015. Please let me know when I can expect to receive a response, or if further clarification is needed.

Thank you for your help.

From: Rastellini, Patricia (SEC)

Hi Shawn,

I believe this was opened on July 16. You should be receiving correspondence from our office.
Regards,

Patricia

From: Shawn Musgrave

Patricia -

Thanks for following up. I received the appeal acknowledgement letter this week.

Have a great weekend!

Best,
Shawn

From: Rastellini, Patricia (SEC)

You’re very welcome Shawn.

From: Supervisor of Records

A letter stating that the request appeal has been succesful.

From: Shawn Musgrave

Mr. Procopio -

Per a letter dated September 28, the Supervisor determined that MSP has not provided adequate justification for withholding the requested incident reports, and must release them within 10 days or else provide a sufficient explanation for withholding the reports in line with the public records law.

Please confirm that you have received the SPR's letter, and advise as to the status of this request's fulfillment.

Best,
Shawn Musgrave
MuckRock

From: Shawn Musgrave

Hello -

I have heard no update whatsoever on this request. The SPR has ordered the Massachusetts State Police to release the incident report, or else to provide a legally sound justification for refusing to do so. Please advise immediately as to the status of fulfilling this request.

Respectfully,
Shawn Musgrave
MuckRock

From: Shawn Musgrave

Hello -

I still have not received the documents or any other update regarding the fulfillment of this request. Please advise.

Respectfully,
Shawn Musgrave

From: Shawn Musgrave

Hello -

I have not received any update on this request. Please advise immediately as to its status.

Respectfully,
Shawn Musgrave

From: Massachusetts State Police

An interim response, stating the request is being processed.

From: Shorey, Stephen (SEC)

Mr. Musgrave,

Did you receive the letter from Attorney Sean Farrell dated October 29, 2015?
Best,
Stephen

Stephen W. Shorey
Staff Attorney
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
Ph: (617) 727-2832
Fax: (617) 727-5914

From: Shawn Musgrave

Mr. Shorey -

I did receive the October 29 letter. Please advise as to the SPR's next steps with regard to this request.

Best,
Shawn Musgrave

From: Shorey, Stephen (SEC)

Mr. Musgrave,

This Office will review the State Police’s request for reconsideration as outlined in its October 29, 2015 letter. You will receive a copy of the Determination letter upon completion of this review.

Feel free to let me know if you have any questions.
Best,
Stephen

Stephen W. Shorey
Staff Attorney
Office of the Secretary of the Commonwealth
Public Records Division
One Ashburton Place, Room 1719
Boston, MA 02108
Ph: (617) 727-2832
Fax: (617) 727-5914

From: Supervisor of Records

An interim response, stating the request is being processed.

From: Massachusetts State Police

A letter stating that the request appeal has been rejected.

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