Christian Rosado v. Office of the District Attorney - Hampden District (SPR 20180685)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2018 SPR18/685 Joseph P. Pessolano, Esq. Records Access Officer Office of the District Attorney - Hampden District 50 State Street Springfield, MA O1 102 Dear Attorney Pessolano: I have received the petition of Christian Rosado appealing the response of Office of the District Attorney - Hampden District (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rosado requested various categories ofrecords related to an identified former assistant district attorney. The Office denied his request, claiming, in part, it does not possess responsive records. 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, § IOA(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 P. Pessolano, Esq. SPR18/685 Page 2 May 25, 2018 Purpose of request 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 requesters. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Rosado's purpose in making the request has no bearing on the public status of any existing responsive records. The Office's April 23rd response The Office states "[t]he types of documents that [Mr. Rosado] describe[s], if they were created by [the Office] and exist, would be found in the individual's personnel file." The Office indicates that "a review of [his or her] personnel file discloses no records which would fall within the categories which [Mr. Rosado] identifies." The Office states that "even if such records were contained in the file, the Public Records Law ... sets forth an exemption for such records. G.L. c. 66, sec.IO; G.L. c. 4, sec. 7 (26) (c)." The Office indicates that Mr. Rosado's records request "asks for certain information, such as to whom the requested documents were released" and asserts that "the Public Records law deals with an agency's obligation to produce documents, not information, and [Mr. Rosado's] request in this regard is improper." A records access officer (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 responsive records. G. L. c. 66, § IO(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). The Office is advised that if they are unable to identify the records sought in Mr. Rosado'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). Despite the Office's April 23rd response, it is unclear whether the Office possesses responsive records. Specifically, it is unclear if the Office has conducted a thorough search for responsive records. Although the Office states Mr. Rosado's request seeks "[t]he types of documents ... [that] would be found in the individual's personnel file," it is unclear if responsive records were searched for outside the personnel file. Additionally, it is unclear if the Office is claiming Exemption ( c ). If the Office is claiming Exemption ( c) applies to withhold responsive records, it must provide 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

Joseph P. Pessolano, Esq. SPRI8/685 Page 3 May 25, 2018 exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). With respect to the Office's claim Mr. Rosado is seeking "information" as opposed to "documents" making his request "improper," the Office is reminded it must use its superior knowledge when responding to a public records request. See G. L. c. 66, § IO(b)(vii) (An RAO must use its knowledge of the records to facilitate providing any additional responsive records). The Office is additionally reminded that "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. As such, although the Office may interpret Mr. Rosado's request to be for "information" and not for "records" that does not relieve it of its obligation to assist the requestor and use its knowledge of the records in the Office's possession to determination whether it possesses records that would be responsive to this request. I understand a member of the Public Records Division staff contacted your office, but was unable to reach you prior to the issuance of this determination. Order Accordingly, the Office is hereby ordered to provide Mr. Rosado with a response to the request, provided 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: Christian Rosado