Gregory Smith v. Cape & Islands District Attorney's Office (SPR 20191637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records August 16, 2019 SPR19/1637 Tara L. Miltimore, Esq. Assistant District Attorney Cape & Islands District Attorney's Office 3231 Main Street, P.O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received your petition on behalf of the Cape & Island District Attorney's Office (DAO) seeking relief from its obligation to produce responsive records. G. L. c. 66, § 10(c ); see also 950 C.M.R. 32.06(4). As required by law, the DAO furnished a copy of this petition to the requestor. G. L. c. 66, § lO(c). On May 5, 2019, Gregory Smith requested contact information of AD As employed by the DAO, and a specific slideshow that was presented on or around October 26, 2018. This petition is the subject to two previous administrative appeals. See SPR19/761 Determination of the Supervisor of Records (April 26, 2019); SPR19/1313 Determination of the Supervisor of Records (July 3, 2019). Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and One Ashbmion 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. SPR19/1637 Page 2 August 16, 2019 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the·broad dissemination of information to the public about actt1al or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition The DAO is i;equesting "relief from the repeated harassing requests from the requester Gregory Smith." The DAO specifies that they "are not seeking relief from responding to Mr. Smith altogether but only from his most recent records request." The DAO states that "the email c01Tespondences ... have been ongoing since the beginning of 2018. ". In support of its claim of harassment, the DAO provided letters and correspondence between Mr. Smith and the DAO. The DAO asserts that "[d]espite the harassing and somewhat threatening content of his correspondence, our office has tried to provide the records requested." The DAO supplements this claim by stating that "[h]is repeated requests for ADA names and contact information is troubling." In paiiicular, the DAO references Mr. Smith's January 26, 2019 letter responding to a DAO response illustrating that "it is clear he does not find the office's responses credible." In the aforementioned letter, Mr. Smith claims the DAO is "intentionally attempting to keep this information from the public" and that the DAO "is not responding in an open and truthful manner." The Superior Court ruled on a matter involving public records requests that were intended to intimidate or harass. Specifically, in Erickson v. Exec. Office of Envtl. Affairs, 2006 Mass. Super LEXIS 4 76 (Aug. 4, 2006) the plaintiff requested dozens of public records from the defendant which the court found to be overly broad and, in some cases, unlimited in time. The plaintiff was also found to be abusive to the Court and its staff as well as harassing to the opposing party. Id. Based on the information provided in the petition, I find that the DAO has not met the burden to demonstrate that the requests for "contact information" for all ADAs employed by the DAO, is frivolous or designed to intimidate or harass in a manner similar to the requests described in Erickson. Please note that in accordance with G. L. c. 66, § 10(c ), petitions for relief of a custodian's obligation to respond to public record requests must be made within 20 business days

Tara Miltimore, Esq. SPR19/1637 Page 3. August 16, 2019 after initial receipt of the request, or within 10 business days after receipt of a determination by the supervisor of public records that the requested record constitutes a public record. Conclusion Accordingly, I decline to grant the DAO's petition under G. L. c. 66, § lO(c) for relief of its obligation to provide public records responsive to Mr. Smith's request. Sincerely, ~r~ Supervisor of Records cc: Gregory Smith