Jonathan Corey v. Suffolk County Sheriff's Department (SPR 20190465)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 12, 2019 SPR19/0465 Maria F. Romero, Esq. Assistant General Counsel Suffolk County Sheriffs Department 132 Portland Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Jonathan Corey appealing the response of the Suffolk County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 16, 2019, Mr. Corey requested information" ... regarding comp. time for 419 members. Comp. Time is referenced in our Collective Bargaining Agreement; however, the cap of 100 global hours is not mentioned anywhere. I am requesting where this cap came from and who it was bargained with." The Department provided a response on January 21, 2019, including a responsive record. The Department provided another response on February 22, 2019, indicating there are no other records. Unsatisfied with the Department's responses, Mr. Corey petitioned this office and this appeal, SPRl 9/0465, was opened as a result. While this appeal was pending, the Department provided a supplemental response on March 1, 2019, reiterating its assertion that there are no additional records in its possession. 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, § 1 O(b )(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 5 07, 511 ( 1995) ( custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian 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

Maria F. Romero, Esq. SPR19/0465 Page 2 March 12, 2019 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's January 21st, February 22nd, and March 4th responses In its January 21, 2019 response, the Department provided a "one page Memorandum dated August 14, 2013." On February 22, 2019, the Department stated that it " ... submitted all responsive documents in its original request." This claim was reiterated in the Department's March 4th supplemental response. 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. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10( a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Department confirms it has provided all responsive documents in its possession, I find that Mr. Corey's appeal related to his request has been resolved. Conclusion Accordingly, whereas the Department explains it does not possess additional records responsive to Mr. Corey's request, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jonathan Corey