Pon Nokham v. Essex County Sheriff's Department (SPR 20171663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 11, 2017 SPR17/1663 Scott Sullivan, Esq. Essex County Sheriffs Department 20 Manning A venue P. 0. Box 807 Middleton, MA 01949-2807 Dear Attorney Sullivan: I have received the petition of Pon Nokham, Esq. appealing the response of the Essex County Sherriff's Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on October 16, 2017, Attorney Nokham requested "Visitor log" records on an identified individual "for the period beginning January 1, 2012 and ending on January 5, 2017." After receiving a response from the Department, Attorney Nokham narrowed her request on October 23, 2017 stating that the request seeks "names and. dates of visitors only" and excludes any identifying information. The Department provided a response dated October 23, 2017 in which it denied access to responsive records. Unsatisfied with the Department's response, Attorney Nokham petitioned this office and this appeal, SPRl 7/1663, was opened as a result. 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, § 1O (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. 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

Scott Sullivan, Esq. SPRl 7/1663 Page 2 December 11, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requester Please note that the reason for which a requestor 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 requestors. 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, Attorney Nokham'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. 32.08(1)(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, Attorney Nokham may wish to consider another means of seeking to obtain any existing responsive records. The Department's October 23rd response In its October 23rd response, the Department indicated that" ... [a] subpoena from the court is required in order for the release of the requested documents." Exemptions Although the Department's initial October 23, 2017 response indicates that a court subpoena is required before the release of the requested record, no exemptions were claimed with specificity under the Public Records Law. The Department is reminded that a custodian has the burden of establishing the applicability of an exemption to withhold a 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). Accordingly, whereas the Department has not satisfied its statutory and regulatory obligation under the Public Records Law, I find if the Department is withholding records it must cite specific exemptions and the reasons the exemptions apply to withhold the records from disclosure. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated you will provide a supplemental response.

Scott Sullivan, Esq. SPR17/1663 Page 3 December 11, 201 7 Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provide said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Pon Nokham, Esq.