Maya Shaffer v. Cape & Islands District Attorney's Office (SPR 20192458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 19, 2019 SPR19/2458 Tara L. Miltimore, Esq. Assistant District Attorney Cape & Islands District Attorney's Office 3231 Main Street P. 0. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Maya Shaffer of Critical MA Nevvs appealing the response of the Cape & Islands District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 5, 2019, Ms. Shaffer requested the following records in an electronic format: [a] " ... last two months of police reports ... that include charges of either interference or obstruction of a police officer [b] ... most recent police reports that includes charges of either interference or obstruction of a police officer from each police department that has sent one over the last year · [c ] ... all communications with police departments regarding the charges of either interference or obstruction of a police officer from this year [d] ... all current policies/memos/directives about how [the] [DAO] office handles charges of either interference or obstruction of a police officer." The DAO responded on November 25, 2019, providing certain responsive records in redacted form and responding that other requested records do not exist. Unsatisfied with the DAO 's response, Ms. Shaffer petitioned this office and this appeal, SPRl 9/2458, 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). 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 L. Miltimore, Esq. SPR19/2458 Page 2 December 19, 2019 The DAO's November 2s11t response With respect to Request (a), the DAO explained "this office does not have any records responsive to your request. Also, to be clear, our office receives police reports at the arraignment stage of the criminal proceeding so as I mentioned earlier, many police reports within the last two months would pertain to ongoing cases and as such are exempt from the public records law, M.G.L. c. 4, §7, cl.26 (f)(investigatory)." In her December 12, 2019 petition, Ms. Shaffer takes issue with the "overbroad use of the investigatory exemption. The [DAO]'s office is blanketly citing the investigatory exemption to hold all open police reports exempt." 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. However, in a conversation between a Public Records Division staff attorney and a DAO representative, the DAO confirmed that it had no records pursuant to Request (a). Please be advised, 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). 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. See G. L. c. 66, § 10( a)(ii). In light of the above, this office encourages the DAO and Ms. Shaffer to communicate in the future to enable the DAO to provide any requested public records. See G. L. c 66, § lO(a)(i). Ms. Shaffer may contact the DAO to clarify any additional records she is seeking to obtain. The DAO must use its knowledge of the records to facilitate providing any responsive records. Conclusion Whereas the DAO does not possess records responsive to Ms. Shaffer's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Maya Shaffer