Steven Fitzgerald v. Office of the District Attorney - Middlesex District (SPR 20181324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7,20 18 SPRl811324 Robert Bender, Esq. Assistant District Attorney Middlesex County District Attorney's Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Bender: I have received the petition from Steven Fitzgerald appealing the response from the Middlesex County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, fj l0A; see also 950 C.M.R. 32.08(1). On July 30,2018, Mi. Fitzgerald made apublic records request to the DAO. Specifically, Mr. Fitzgerald requested records pertaining to a harassment report made to the Massachusetts State Police by the DAO. On August 13,2018 , the DAO provided Mr. Fitzgerald with a response to his public records request claiming they "have not been able to identify any attorney in this Office who is able to recognize what report made to the Massachusetts State Police that this Office may have made that may be the report you associate with being subject to harassment." Also the DAO requested Mr. Fitzgerald to "provide a time period when this prosecution of you was happening." Mr. Fitzgerald appeals the DAO's August 1 3re~sp~on se to this office. Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, 5 1O (a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, 5 lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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, 5 10(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, 5 10(b) (iii). 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

Robert Bender, Esq Page 2 September 7,201 8 When withholding requested records, a records custodian is required to provide a response that identifies "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." G. L. c. 66, fj lO(b)(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, fj 10(a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289- 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Appeal The DAO informed Mr. Fitzgerald as stated above that they could not find the report he was requesting. 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, fj lO(a)(ii) (b)(ii). If Mr. Fitzgerald still believes that there are records in the DAO's possession related to his requests, he should provide the DAO with a more detailed description of the records he wishes to obtain. See G. L. c. 66, fj 10(a)(i). An agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably. See G. L. c. 66, fj 10(b)(vii). Conclusion Further, in light of the DAO's August 13 thr esponse, I find the DAO has met its burden in responding to this request. See G. L. c. 66, fj lO(b)(ii)(iii). Sincerely, 61 Rebecca S. Murray Supervisor of Records cc: Steven Fitzgerald