Gregory Smith v. Cape & Islands District Attorney's Office (SPR 20191554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 19, 2019 SPR19/1554 Tara Miltimore, Esq. Records Access Officer Cape & Islands District Attorney's Office 3231 Main Street, P.O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Gregory· Smith appealing the response of the Cape & Islands District Attorney's Office (DAO) to his request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Smith requested a copy of a PowerPoint presentation, as well as "contact information" of all AD As employed by the DAO. Unsatisfied with the DAO's latest response and belief that the DAO has not provided all responsive records, Mr. Smith petitioned this office and this appeal 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). 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Tara Miltimore, Esq. SPR19/1554 Page 2 August 19, 2019 Conclusion Subsequent to communications between a representative from the DAO and a staff member of the Public Records Division, I learned that the DAO does not have a copy of the PowerPoint presentation that Mr. Smith has requested. I understand that the PowerPoint presentation is routinely updated, therefore, the DAO does not currently possess the copy Mr. Smith requests. It should be noted that in accordance with the Massachusetts Statewide Retention Schedule, the DAO is permitted to destroy these types of records once the administrative use has ceased, without receiving. prior approval from the Records Conservation Board. See Massachusetts Records Retention Schedule, A05-03(b). As such, I find that the DAO has satisfied its obligation to respond to this portion of Mr. Smith's request. Under the Public Records Law, the DAO is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). With respect to the second p01iion of Mr. Smith's request, it remains unclear if Mr. Smith has received all of the requested "contact information." Accordingly, the DAO is ordered to provide a response to Mr. Smith within ten business days. Said response shall be made in accordance with the Public Records Law, its Access Regulations and this order. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Smith may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Gregory Smith