David G. Magraw v. Norfolk County District Attorney's Office (SPR 20190520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2019 SPR19/0520 Laura A. McLaughlin, Esq. Norfolk County District Attorney's Office 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of David G. Magraw appealing the response of the Norfolk County District Attorney's Office (Office or NDAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Magraw requested "a copy of [an identified] criminal case file 'index file."' The Office denied his request. 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, § 1O (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. Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public 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

Laura A. McLaughlin, Esq. SPR19/0520 Page 2 March 22, 2019 record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Magraw's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.0S(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Magraw may wish to consider another means of seeking to obtain any existing responsive records. No duty to create records; use of custodian's superior knowledge Under the Public Records Law, the Office 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Although the Office indicates that it "does not possess an 'index file' of [an identified] case," it is unclear if the Office possesses any other records responsive to Mr. Magraw's request. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requesters in obtaining the desired information. See 950 C.M.R. 32.04(5). The Office must clarify this matter. Unique right of access Although the Office states that "the public records law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means," based on the Office's assertion that it does not possess responsive records, it is uncertain whether Mr. Magraw currently has a unique right of access to the requested records. Further, it is unclear what applicable means the Office is claiming affords Mr. Magraw a unique right of access to the records. The Office must clarify this matter. Order Accordingly, the Office is ordered to provide Mr. Magraw with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Laura A. McLaughlin, Esq. SPR19/0520 Page 3 March 22, 2019 within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David G. Magraw