Bittick, Jr., E Kelly v. Executive Office of Public Safety and Security - Department of State Police (SPR 20150842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 30, 2015 SPRlS/842 Ms. Jaclyn Zawada, Esq. Staff Counsel Massachusetts State Police 4 70 Worcester Road Framingham, MA 01702 Dear Attorney Zawada: I have received the petition of E. Kelly Bittick, Jr., Esq., appealing the response of the Department of State Police (Department) to his request for publi<;: records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Bittick requested a copy of records involving a former District Attorney, the Department, representatives of Florida law enforcement and a specifically identified person or his attorneys, relating to: 1. Actual or anticipated testimony of a specific person in connection with an ongoing Bristol County grand jury investigation into organized crime, and/or 2. Actual or anticipated testimony of the specific person in connection with the Florida prosecution of Attorney Bittick's client for a 1966 murder In your written response you "advised that the Department has not located any records responsive to [Attorney Bittick's] request." You further explained that the Commonwealth Fusion Center has located a file. While, as you noted, the file "is not responsive to [Attorney Bittick's] request, it does reference [Attorney Bittick's] client." You stated that this not responsive material is exempt from disclosure under the Public Records Law. Attorney Bittick appealed. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). While Attorney Bittick objected to the Department's exemption claims, these exemptions did not apply to records responsive to his request, as such records do not exist. I accept that you used your superior knowledge in determining that the Department has no responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Jaclyn Zawada, Esq. SPR15/842 Page Two December 30, 2015 This office is unable to issue a determination on an appeal of a public record request where no responsive record exists. Accordingly, this administrative appeal is now closed. I understand Attorney Bittick made a related request to the Department in a letter dated December 17, 2015. Attorney Bittick may appeal the substantive ature of the Department's response within ninety (90) days. See 950 C.M.R. 32. cc: Mr. E. Kelly Bittick, Jr., Esq.