Melissa A. Celli, Esq. v. Office of the District Attorney - Plymouth District (SPR 20160369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 16, 2016 SPR16/369 Ms. Gail M. McKenna Esq. Plymouth District Office of the District Attorney 32 Belmont Street Brockton, MA 02301 Dear Attorney McKenna: I have received the petition ofMelisa Allen Celli, Esq., appealing the response of Plymouth District Office of the District Attorney (DAO) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Celli made six (6) requests for copies of records. Attorney Celli requested that all fees associated with her request be waived due to her client's indigence. In a response dated March 4, 2016 you state that the DAO has "no public records responsive" to Attorney Celli's requests. Further, you state that records, "even if' they exist, would be exempt from disclosure pursuant to the statutory, privacy and investigatory exemptions to the Public Records Law. G. L. c. 4, § 7 (26) (a), (c), (f). In claiming the statutory exemption the DAO failed to city any underlying applicable statute. The DAO declined to waive any fees; however, no fee estimate was provided. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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 ofthe records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Gail M. McKenna, Esq. SPR16/369 Page2 June 16, 2016 The statutory authority and subsequent case law are absolutely clear that only the Supervisor, the Superior Court, or the Supreme Judicial Court is authorized to decide whether a record is public. G. L. c. 66, § 1O (b ); Hull Municipal Lighting Plant v. Massachusetts Municipal Wholesale Electric Co., 414 Mass. 609, 614-15 (1993). If there are any fees associated with a 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 of records shall provide written good faith estimate). Once fees are paid, a records custodian 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. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. 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 ($1 0. 00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Regulations. See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of five cents ($.05) per page for a black and white single or double sided photocopy of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate ofthe lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the ______ ,fi"'l""e,_,c ""o"±'py_and refi]e public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 1 O(a). Status ofr equestor not relevant in request for public records The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the

Ms. Gail M. McKenna, Esq. SPR16/369 Page 3 June 16, 2016 circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, the status of Attorney Celli or her client provides no greater right of access to the records responsive to her request. Similarly, Attorney Celli's claim of client indigency provides no guaranty that a records custodian must waive all fees associated with a public records request. The Regulations encourage records custodians to waive fees when such a waiver is in the public interest, however, the decision to waive fees rests with the records custodian. See 950 C.M.R. 32.06. Your response suggests a requester "must" pay a fee for public records. This is not so. A records custodian is not required under the Public Records Law or its Regulations to assess a fee for copies of records, and a requester is not required to pay for all copies of records. A custodian is permitted, but not required, to waive all or a portion of a fee for public records. Failure to meet burden with respect to applicability of exemptions Your response cited three exemptions in denying access to records. In your response you failed to state whether any responsive records exist. Further, in your response you failed to state with specificity the applicability of any of the exemptions. In particular, you cited the statutory exemption, which requires the citing of a specific statute that permits or requires nondisclosure. You failed to cite any such statute. Order I find the DAO has failed to respond to a request for public records. Accordingly, the DAO is hereby ordered to provide Attorney with a response to the request without delay, prepared in a manner consistent with this order, the Public Records Law and its Regulations. The DAO is ordered to do a full and thorough search of its records to identify all records responsive to Attorney Celli's request. 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. cc: Ms. Melissa A. Celli, Esq.