Steven Fitzgerald v. Department of Mental Health (SPR 20181040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2018 SPRlS/1040 Misael Garcia Massachusetts Department of Mental Health 25 Staniford Street Boston, MA 02114 Dear Misael Garcia: I have received the petition of Steven Fitzgerald appealing the response of the Massachusetts Department of Mental Health (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested [t]he Public log for the Commissioners Investigations ... from March 1, 2013 thru December 31, 2013." 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, 5 7(26). Current Appeal In a letter dated July 16, 2018, the Department expressed to Mr. Fitzgerald that there are no records responsive to his request. In the letter the Department writes, "[ a ]fter a comprehensive search, DMH has identified no records responsive to your PRR in its possession, custody, or control." Unsatisfied with this response, Mr. Fitzgerald petitioned this office and as result, SPRl 8/1040 was opened. No Duty to Create Records Under the Public Records Law, the Department 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). 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

Massachusetts Department of Mental Health SPR18/1040 Page 2 July 17, 2018 Conclusion Whereas the Department does not possess records responsive to Mr. Fitzgerald's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, ~y~ Supervisor of Records cc: Steven Fitzgerald