Steven Fitzgerald v. Executive Office of Health and Human Services - Department of Mental Health (SPR 20181182)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

August 16, 2018

SPR18/1182 Olubunmi Olotu, Esq.

Department of Mental Health 25 Staniford Street Boston, MA 02114-2575

Dear Attorney Olotu:

I have received the petition of Steven Fitzgerald appealing the response of the Department of Mental Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Fitzgerald requested various documents

concerning corrective measures believed to have taken place at the Shattuck Hospital.

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, § 1OA(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).

Current Appeal

In a response letter dated August 7, 2018, you expressed to Mr. Fitzgerald that “[a|fter a comprehensive search, DMH has not identified any records responsive to your PRR in its possession, custody or control.” Unsatisfied with this response, Mr. Fitzgerald petitioned this office and as a result SPR18/1182 was opened.

In his petition dated August 8, 2018, Mr. Fitzgerald writes, “If the documents for those corrective measures have been destroyed provide the date in which they were destroyed.”

No Duty to Create Records

Please be advised, 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,

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

Department of Mental Health SPR18/1182 Page 2 August 16, 2018

custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). ‘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.

Blewea

telecon S. Murray Supervisor of Records

cc: Steven Fitzgerald