Richard Villar v. Essex County District Attorney's Office (SPR 20191891)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 27, 2019 SPR19/1891 Kristen W. Jaing, Esq. Assistant District Attorney Essex County District Attorney's Office 10 Federal Street Salem, MA 01970 Dear Attorney J aing: I have received the petition of Richard Villar appealing the response of the Essex County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Villar requested "Court transcripts from dates 8/17/06, 9/25/06, 9/9/11, and 10/28/11. Any and all related matters from Shauna Harrington in the above case". Unsatisfied with the response he had received from the DAO, Mr. Villar petitioned this office and this appeal was opened as a result. The DAO's Resp01rses In a July 31, 2019 letter to Mr. Villar, the DAO stated that "[t]he file retention policy for district court cases of this type is four years. See Massachusetts Statewide Records Retention Schedule (Revised June 19), pg. 49. As a result, we do not have any documents pertaining to your request." In a subsequent letter dated August 23, 2019, the DAO reaffirmed that it does not possess any records responsive to Mr. Villar's request. No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. While 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 of records at the time of the request, it is unclear whether the requested records were ever possessed by the DAO. See G. L. c. 66, § lO(a)(ii). 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 ·

Kristen W. J aing, Esq'. SPR19/1891 Page 2 September 27, 2019 Conclusion Accordingly the DAO is ordered to provide a response to Mr. Villar clarifying whether the requested records existed, and if so, demonstrate that they were permissibly destroyed. This response must be made in accordance with the Public Records Law, its Access Regulation and this order within ten (10) business days. 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: Richard Villar