Jamie Folk v. Office of the Attorney General (SPR 20181777)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 5, 2018 SPRlS/1777 Lorraine A.G. Tarrow, Esq. Assistant Attorney General & Records Access Officer Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Jamie Folk appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested "[a]ll interviews (written, audio and video recordings) and investigation summaries, notes and emails for the Attorney General's investigation into the classification of federally schedule drugs that are not illegal in MA. The drugs in question could include, but aren't limited to, the following Molly, Foxy, Bath Salts, and BZP." Previous appeal This request was the subject of a previous appeal. See SPRl 8/1108 Determination of the Supervisor of Records (August 8, 2018). I closed SPRl 8/1108 upon notification that the Office was working to provide Mr. Folk with responsive records. The Office provided Mr. Folk with a response on October 12, 2018 which included redacted records and an indication the Office was still working on providing records to a portion of Mr. Folk's request. Unsatisfied with the Office's response, Mr. Folk petitioned this office and this appeal, SPRl 8/1777, 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). 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 A.G. Tarrow, Esq. SPR18/1777 Page 2 December 5, 2018 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, § 1 O(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.· Current appeal In its October lih response, the Office indicates that it enclosed 96 pages of potentially responsive records, some of which had been redacted pursuant to the Criminal Offender Record Information Act and the Inspector General Records statute as they operate through Exemption (a) of the Public Records Law, as well as Exemption (c) of the Public Records Law and under the common law attorney-client privilege. The Office additionally indicates that it is "still in the process of reviewing one (1) interview transcript and one (1) interview recording that may be responsive to [Mr. Folk's] request" and "will provide [Mr. Folk] with these records upon completing [the Office's] redaction process." The Office states the records will be redacted pursuant to Exemptions (c) and (n) of the Public Records Law. In Mr. Folk's petition for appeal, he indicates that "[t]he AG's office refused to provide any reports associated with their BZP investigation. I am challenging that decision." While this appeal was pending, the Office contacted this office and indicated that it has not refused to provide Mr. Folk with any records and intends to provide Mr. Folk a supplemental response. Under the Public Records Law, 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 ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). Conclusion As described above, the Office has indicated that it intends on providing Mr. Folk with a subsequent response that will include additional responsive records. Said response must be made in accordance with the Public Records Law and its Access Regulations. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Folk may appeal the substantive nature of the Office's response within 90 days. See 950 C.M.R. 32.08(1).

Lorraine A.G. Tarrow, Esq. SPR18/1777 Page 3 December 5, 2018 Sincerely, ~a~ Supervisor of Records cc: Jamie Folk