Todd Wallack v. Office of the District Attorney - Suffolk County (SPR 20160243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April21, 2016 SPR16/243 Ms. Dara Z. Kesselheim, Esq. Assistant District Attorney Office of the District Attorney - Suffolk District One Bullfinch Place, Suite 300 Boston, MA 02114-2921 Dear Attorney Kesselheim: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Office ofthe District Attorney- Suffolk District (DAO) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a "record layout" or "data dictionary" for the DAO's electronic case management database (Request 1). Mr. Wallack also requested "a copy of the procurement contract for the database system the department is now using" or an explanation regarding the system (Request 2). The DAO responded in a letter dated AprilS, 2016 and Mr. Wallack appealed. 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). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Request 1 In the DAO's April 5 letter to Mr. Wallack, you explain "[t]his office has conducted a diligent search of its records and does not have any materials responsive to your request." Under the Public Records Law, the DAO is not required to create a list of records or any record in response to a public records request. See G. L. c. 66, § 10 ( a); 32 Op. A tty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Dara Z. Kesselheim, Esq. SPR16/243 Page 2 April21, 2016 exist and are in the custody ofthe custodian of records at the time ofthe request. See G. L. c. 4, § 7(26). Accordingly, I will consider this portion of the appeal closed. Request 2 The DAO's AprilS letter does not address Mr. Wallack's request for "a copy ofthe procurement contract for the database system the department is now using" (Request 2). In a conversation with an attorney on my staff, you indicated the DAO will provide Mr. Wallack a supplemental response addressing this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO, within ten (1 0) days of this order, provides Mr. Wallack a response to Request 2, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the DAO maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (10) 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 deter · tion for further information. rs, cc: Mr. Todd Wallack