Christian Rosado v. Office of the District Attorney - Hampden District (SPR 20180893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 29, 2018 SPRlS/893 Joseph P. Pessolano, Esq. 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 the 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 of records related to an identified former assistant district attorney. This request was the subject of a previous appeal. See SPRl 8/685 Determination of the Supervisor of Records (May 25, 2018). I closed SPR18/685 by ordering the Office to provide Mr. Rosado with a response to his request, provided in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. In a letter dated May 30t\ the Office provided Mr. Rosado with another response. Unsatisfied with the Office's response, Mr. Rosado petitioned this office and this appeal, SPR18/893, 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, § 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. 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. SPR18/893 Page 2 June 29, 2018 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. No duty to create records Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In its May 30th response, the Office indicates that it "does not possess any documents responsive to [Mr. Rosado's] [r]equest, either in the individual's personnel file or elsewhere. Therefore, no responsive documents are being withheld." Conclusion Whereas the Office has confirmed it does not possess responsive records, I find it has met its burden in responding to this request. Id. Accordingly, I will now consider this appeal closed. If Mr. Rosado is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian Rosado