O'Toole, Justin v. Worcester County Sheriff's Office (SPR 20140571)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 22, 2014 SPR14/571 Ms. Rebecca Pellegrino Special Sheriff Worcester County Sheriff's Office 5 Paul X. Tivnan Drive West Boylston, MA 01583 Dear Ms. Pellegrino: I have received the petition of Justin O'Toole appealing the response of Office of the Sheriff-County of Worcester (Sheriff's Office) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. O'Toole requested copies of records indicating the number of vacant correctional sergeant and correctional officer positions with the corresponding position numbers. In a response dated September 12, 2014 you informed Mr. O'Toole that the Sheriff's Office does not maintain documents relative to his request. In a September 15, 2014 telephone conversation an attorney on my staff explained to the Sheriff's Office that a record custodian's superior knowledge of the contents of a governmental entity's files shall be used to assist in promptly complying with the request. 950 C.M.R. 32.05( 4). Subsequent to that conversation the Sheriff's Office performed an additional search of its records. In an email to Mr. O'Toole dated October 16,2014 you provided records that the Sheriff's Office does maintain in hopes that they would be responsive. My understanding is that the Sheriff's Office has no other responsive records. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time ofthe request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Rebecca Pellegrino SPR14/571 Page Two October 22, 2014 Whereas the Sheriff's Office has no other records responsive to Mr. Toole's request, I will consider this administrative appeal closed. n . Supervisor ofRecords cc: Mr. Justine O'Toole