Todd Wallack v. Sex Offender Registry Board (SPR 20160190)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 24, 2016 SPR16/190 Mr. William H. Burke, Esq. General Counsel Executive Office of Public Safety and Security Sex Offender Registry Board P.O. Box 4547 Salem, MA 01970 Dear Attorney Burke: I have received the petition of Todd Wallack of the Boston Globe appealing the response of Sex Offender Registry Board (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a "current electronic list of Level 2 and Level 3 Sex offenders, including all the information in the database that is available to the public (such as the name, date of birth and address)." The Board responded in a letter dated March 9, 2016 and indicated the responsive information is available on the Board's website. Mr. Wallack appealed this response. In his appeal petition, Mr. Wallack explains he requested the responsive records in their native electronic format. 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). Where the native form of the records requested is electronic the Board must respond to a request that the records be provided in that form. The Board has claimed no exemption to assist it in denying records in their native form. The Board must confirm whether a responsive "electronic list" exists and is in the Board's possession. See 950 C.M.R. 32.03. Other states have recognized the fact that electronic records must be disclosed in native form in response to a request for public records. See Lake v. City of Phoenix, 107 Fair Empl. Prac. Cas. (BNA) 1142 (2009) (if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. William H. Burke, Esq. SPR16/190 Page 2 March 24, 2016 An attorney on my staff provided to you a copy of Mr. Wallack's appeal petition and you indicated the Board would be willing to provide a supplemental response to Mr. Wallack that addresses the issues discussed above. Conclusion Accordingly, I will consider this appeal closed with proviso that the Board, within ten (10) days, provide Mr. Wallack with a response to the request prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Board maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Wallack 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. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(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 of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. cc: Mr. Todd Wallack