Albert A. Correa-Martinez v. Office of the District Attorney - Hampden District (SPR 20171209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 13, 2017 SPR17/1209 Joseph Pessolano, Esq. Office of the District Attorney - Hampden County 50 State Street Springfield, MA O1 102 Dear Attorney Pessolano: I have received the petition of Albert Alexander Correa-Martinez appealing the response of the Hampden County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Correa-Martinez requested "copies of any and all documentation within [the DAO's] possession that was generated by [the DAO] relative to [his] arrest, such as certificate of analysis, police incident, reports, etc, on May 1, 2014." Mr. Correa-Martinez received a denial of this request and appealed the DAO's response. Consequently, this appeal was opened. 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv); 950 C.M.R. 32.06(3); 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). 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. The RAO must provide records within the custodian's possession, custody or control of the agency or municipality that the RAO serves, provided that the request reasonably describes the desired information. G. L. c. 66, § lO(a). RAOs are expected to use their superior knowledge of the records in their custody to assist the requester in obtaining the desired information. 950 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Joseph Pessolano SPRl 7/1209 Page 2 September 13, 2017 C.M.R. 32.04(5). Further, RAOs are required to assist persons seeking public records to identify the records sought and must, when appropriate, suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably. G. L. c. 66, § lO(b); 950 C.M.R: 32.04(5)(b); 950 C.M.R. 32.06(2)(g). Additionally, the RAO must identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the RAO serves and identify the agency or municipality that may be in possession, custody or control of the public record sought, if known. G. L. c. 66, § lO(b); 950 C.M.R. 32.06(3). Purpose of request; identity of requester Please note that the reason for which a requester seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Correa-Martinez's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.0S(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Correa-Martinez may wish to consider another means of seeking to obtain any existing . responsive records. The DAO's August 14th Response The DAO states it is denying Mr. Correa-Martinez's request because the request was made under the Fair Information Practices Act rather than the Public Records Law. Further, the DAO indicates the request is vague because it does not provide a case number or identification of specific documents. Additionally, the DAO states while the request is for records "generated" by the DAO, the categories ofrecords requested are not of the type generated by the DAO. Lastly, the DAO denies access to the criminal file records under the Public Records Law by stating they contain protected Criminal Offender Record Information (CORI). An RAO has a duty to comply with requests for records, which extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, .§ lO(a)(ii). An RAO must explain whether it possesses any responsive records and use its knowledge of the records to facilitate providing any additional

Joseph Pessolano SPRl 7/1209 Page 3 September 13, 2017 responsive records. G. L. c. 66, § lO(b)(vii). Any denial issued by an RAO must be done in a manner consistent with G. L. c. 66, § lO(a-b) and 950 C.M.R. 32.06 (c)(3). All denials must include specific identification of the records sought, identification of which records the custodian possesses, identification and explanation of any claimed exemptions or privileges, identification of any records not within the custodian's possession and identification of the custodian who may be in possession of those records. 950 C.M.R. 32.06 (c)(3). It is uncertain what records the DAO has available and unclear its basis for withholding those records. Similarly, the DAO has not demonstrated that the exemptions mentioned in its response are the basis for withholding responsive records or which specific responsive records fall within each of the exemptions. Further, the DAO has not established whether it possesses any other responsive records that it is not withholding under an exemption. The DAO is advised that if they are unable to identify the records sought in Mr. Correa Martinez's request, they are under a duty to assist him in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). The DAO has not met its burden to withhold the records it has in its possession and must confirm whether it has "documentation ... relative to [Mr. Correa-Martinez's] arrest." If so, the DAO must identify the responsive records. If the DAO intends to withhold records by claiming an exemption under the Public Records Law, it must explain with specificity the applicability of any exemptions claimed. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DAO intends to provide.Mr. Correa-Martinez with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DAO provides said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Correa Martinez may appeal the substantive nature of the School's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Albert Alexander Correa-Martinez