Pagan, Angel v. Springfield, City of - Office of the City Clerk (SPR 20150699)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords November 13, 2015 SPRlS/699 Mr. E. Rhett Towles, MS, Esq. Associate City Solicitor City of Springfield 36 Court Street, Room 210 Springfield, MA 01103 Dear Attorney Towles: I have received the petition of Angel L. Pagan appealing the response of City of Springfield (City) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pagan requested ten (1 0) categories of records related to a specifically identified incident. No duty to create records In your response dated June 9, 2015, you state "[a]fter reviewing the request with the Springfield Police Department, it has become clear that the City has no such responsive documents within its possession relative to your request." 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 of the 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). Use of custodian's superior knowledge of the records In your June 9 response you explain that Mr. Pagan should send future requests for public records to you because "part of my role as the Public Records Custodian for the City is to respond to all requests to all City departments, including the Springfield Police Department. You further state "[i]t should be noted that the Springfield Police Department, at the conclusion One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. E. Rhett Towles, MS, Esq. SPR15/699 Page Two November 13, 2015 of its investigation, would have turned over all such files to the Hampden County District Attorney's Office for further review and prosecution. As such, the City believes that the Hampden County District Attorney's Office would be the last known custodian of such records." In his appeal petition, Mr. Pagan claims that an agency cannot forward a request for public records to another agency. However, under the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.05( 4). The City used its superior knowledge of the records to direct Mr. Pagan to the entity it believes is now in possession of the responsive records. Mr. Pagan is encouraged to request these records from the Hampden County District Attorney's Office. Whereas the City does not possess any records responsive to Mr. Pagan's request, I will consider this appeal closed. cc: Mr. Angel L. Pagan