Shaffer, Maya v. Office of the District Attorney - Worcester District (SPR 20150395)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 15, 2015 SPRlS/395 Mr. Christopher P. Hodgens, Esq. Worcester County District Attorney's Office 225 Main Street-G 301 Worcester, Ma 01608 Dear Attorney Hodgens: I have received the petition of Maya Shaffer of the Bay State Examiner appealing the response of Worcester County District Attorney's Office (DAO) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shaffer requested copies of"[a ]ll records related to the incident that led to" the arrest of a specifically identified officer, including any videos, logs/notes/reports and internal investigation records. Ms. Shaffer also requested the DAO create a list of all records responsive to her request. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). In its April3, 2015 response the DAO explained that internal affairs complaints and reports are not maintained by the DAO. 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). Accordingly, with respect to the DAO creating a list ofrecords responsive to this request and copies of internal affairs complaints and reports, this portion of the appeal is closed. The DAO denied requests "video, logs, notes, and reports," in their entirety citing Exemption (f), the investigatory exemption to the Public Records Law. G. L. c. 4, § 7, (26) (f). The letter further explained that the records involve a pending prosecution. Other than citation of the exemption and case law the denial provided no other information to support this exemption claim. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Christopher P. Hodgens, Esq. SPR15/395 Page Two July 15,2015 The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the DAO did not contain the specificity required in a denial of access to public records. Accordingly, DAO is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each of the requested records. The DAO's response also neglected to explain why the responsive records must be withheld in their entirety. The letter also failed to inform Ms. Shaffer of her right of administrative remedy. The Public Records Access Regulations state that a custodian of records must notify a requester of his administrative remedies in the event the custodian denies access to requested records. 950 C.M.R. 32.08(1). Accordingly, the DAO is hereby ordered to provide all responsive records to Ms. Shaffer in a manner consistent with this order, the Public Records Law and its Regulations. If the DAO intends to withhold or redact any portion of the responsive records pursuant to a specifically stated exemption, Ms. Shaffer must be provided with a written explanation, with specificity, how a particular exemption applies to each record. I find the DAO has failed to meet its burden of specificity in denying access to public records. The response, while stating a prosecution was ongoing, provided no information to support withholding all responsive records. Accordingly, whereas the DAO has not overcome the presumption that the requested records are public, it is hereby ordered, within ten (1 0) days of this order, to provide Ms. Shaffer with the requested records. Ifthe DAO maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. Shaffer a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Mr. Christopher P. Hodgens, Esq. SPR15/395 Page Three July 15, 2015 If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian ofrecords shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. cc: Ms. Maya Shaffer