Robert P. McGovern, Jr., Esq. v. Office of the District Attorney - Essex District (SPR 20160456)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 19, 2016 SPR16/453; SPR16/454; SPR16/455; SPR16/456 Mr. Robert P. McGovern, Jr., Esq. Legal Columnist Boston Herald 70 Fargo Street Boston, MA 02210 Dear Attorney McGovern: I have received your petitions appealing the responses received from four (4) of the Offices of the District Attorney in the Plymouth District (SPR16/453); Hampden County (SPR16/454), Northwestern District (SPR16/455) and Essex District (SPR16/456) (each a DAO) to a May 9, 2016 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested access to inspect or receive copies of all complaints made by each DAO to the Commission on Judicial Conduct (Commission) over the past five (5) years. The ·above-named DAOs denied this request and you appealed. Response and appeal The DAO denials are similarly worded, stating; "If the records exist .... To the extent this Office was in possession of the records, and the complaints are confidential and exempt by statute." The DAOs cited statutory authority to justify each denial. See G. L. c. 211C, § 6; Commission on Judicial Conduct Rule 5. Additionally, the DAO in the Hampden District added, "[T]he complaints are exempt from disclosure under the privacy exemption;" however the Hampden District failed to cite a specifically-enumerated exemption in its denial. Finally, the DAOs did not state whether responsive records actually exist. An attorney on my staff attempted to contact each DAO by telephone with questions related to this appeal. 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, § 1 0( 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Robert P. McGovern, Jr., Esq. SPR16/453-456 Page 2 July 19, 2016 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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 ($1 0. 00), custodian of records shall provide written good faith estimate). Once fees are paid, the custodian must provide the records. Custody of records of the Commission The cited statute and rule apply to records and proceedings of the Commission, as well as the public status of records in the custody of the Commission. The cited sections do not detail the public status of records in the custody of a governmental complainant. Accordingly, I find the DAOs have failed to rebut the presumption that any responsive records are public records in the custody of each respective DAO. Existence of responsive records A custodian's duty to respond to requests for information extends only to records that are in existence and in his custody. See 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 official who has routine access to or control of public records). I find each DAO has failed to meet its burden to state whether a responsive record exists. Order I find the DAOs have failed to provide a proper response to a request for public records. Accordingly, each DAO is hereby ordered to provide a revised response to your request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. fl~· Supervisor of Records cc: Ms. Gail M. McKenna, Esq. Ms. Maida H. Wassermann, Esq. Ms. Cynthia M. Von Flatern, Esq. Mr. David F. O'Sullivan, Esq.