Justin D. Powers v. Attorney General's Office (SPR 20180819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 21, 2018 SPR18/819 Lorraine Tarrow, Esq. Assistant Attorney General & Records Access Officer Attorney General's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Justin Powers appealing the response of the Attorney General's Office (AGO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on May 17, 2018, Mr. Powers made a request for the following records: "l. Transcripts of interviews indexed under subheading 'Interviews' and 'Reviews of Taped Interviews Conducted by the Attorney General's Office. 2. Text messages between [identified individuals]. .. 3. Text messages among members of the Worcester County District Attorney's Office 4. Correspondence and emails of [an identified Colonel] and letter ofretirement of [an identified individual]. .. " 5. " ... any written correspondence or written record of any verbal communication in possession of the AG's office to or from [an identified individual] concerning this incident." The AGO provided a response on June 6, 2018, indicating that it is not the proper custodian of the requested records and therefore does not have possession of the responsive records. Unsatisfied with the AGO's response, Mr. Powers petitioned this office and this appeal, SPR18/819, was opened as a result. While this appeal was pending, the AGO provided a supplemental response on June 20, 2018. 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 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

Lorraine Tarrow, Esq. SPR18/819 Page2 June 21, 2018 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. 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. The AGO's June 61 h and June 2(/'1 responses In its June 6, 2018 response, the AGO indicates that "the 'Burke Report' relates to an independent, outside investigation initiated by the Massachusetts State Police, not the AGO. Therefore the AGO cannot respond to [Mr. Powers'] request for records that are 'described ... [in] the Burke Report' because we are not the custodian of these records as referenced." The AGO references its referral letter to the State Ethics Commission (Commission) and indicates that Mr. Powers should use that as guidance concerning records associated with its investigation for which it would be the proper custodian, if he wishes to submit a public records request for such records. However, the AGO asserts that the records which it collected, compiled, and subsequently forwarded to the Commission for use in its investigation would not be subject to disclosure pursuant to Exemption (f) of the Public Records Law. In its June 20, 2018 supplemental response, the AGO reiterates that it is not the custodian of the records Mr. Powers seeks. It indicates that the identified individual who compiled the Burke Report is not connected in any way to the AGO. Consequently, the AGO asserts that it "does not have possession or control of, or access to, the body of records compiled by [the identified individual]. Nor [d oes it] know which records, including those that [it] may ... have created or have independent custody of, are 'referenced and described' under certain subheadings within the Burke Report .... The AGO is, however, the custodian of the records relating to the AGO's investigation into the Bibaud matter, which may include some, but not all, of the records [the identified individual] compiled" and referenced in his or her report. No duty to create records; records in AGO's possession Under the Public Records Law, a custodian of records is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions; or do research, or create documents in response to questions. See G. L. c. 66, § 1O (a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the

Lorraine Tarrow, Esq. SPR18/819 Page 3 June 21, 2018 time of the request. See G. L. c. 4, § 7(26). As such, whereas the AGO claims it "does not have possession or control of, or access to, the body ofrecords compiled by" [the identified individual] in the Burke Report, I find that Mr. Powers' requests pertaining to such records has been resolved. However, although the AGO is not the proper custodian of the records in the Burke Report, the AGO mentioned that it is the custodian of records relating to its investigation into the matter and advises Mr. Powers to make a public records request pertaining to such records should he wish to be provided copies of those records. Should Mr. Powers decide to modify his request for records specifically in the AGO's possession, please be advised that to the extent that these records include transcripts of interviews or other materials forwarded to the Commission for its investigation, this office has held that the AGO may permissibly withhold such records from disclosure at this time pursuant to Exemption (f), due to the Commission's current investigation that is on-going and incomplete. This temporary non-disclosure of records holds until the status of the Commission's investigation changes. See SPR 18/731 Determination of the Supervisor of Records (May 31, 2018). Conclusion Accordingly, whereas this office has held that the AGO may permissibly withhold from disclosure responsive records in its possession relating to this matter under Exemption (f) at this time, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Justin Powers