Emory Snell, Jr. v. Attorney General's Office (SPR 20192473)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 30, 2019 SPR19/2473 Lorraine A.G. Tarrow, Esq. Assistant Attorney General & Records Access Officer Office of the Attorney General General Counsel's Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Emory Snell, Jr. appealing the response of the Office of the Attorney General (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Mr. Snell requested several categories ofrecords related to presentment letters and Massachusetts Tort Claims Act claims filed with the Attorney General's Office. Specifically, Mr. Snell requested: "documents, materials and other relevant papers concerning: ... Massachusetts Torts Claims Act demands .... from: January 2015 to the present. Additionally, provide: any and all investigations commenced; determinations as to the merits of each claim; payment or compensation recommended, or any actions taken regarding each and every claim. Finally, provide every record, document, paper or any other material not hereto specifically requested regarding those above MTCA claims." The Office provided a response on December 4, 2019, producing 199 pages of responsive records and providing a fee estimate for the production of others. Unsatisfied with this response Mr. Snell petitioned this office and this appeal, SPR19/2473, was opened as a result. Tlte 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

Lorraine A.G. Tarrow, Esq. SPR19/2473 Page2 December 30, 2019 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. G. L. c. 66, § lO(b)(iv). Tlte Office's Response The Office provided a response on December 4, 2019, providing 199 pages ofrecords responsive to Mr. Snell's request. The Office further states that it has "identified three hundred and ninety-six (396) presentments, comprised of approximately 5,000 pages of records, that may be responsive to these portions of your request." The Office estimates that it will require approximately 33 hours to produce these records, for an estimated cost of $775. The Office additionally notes that it "expect[s] to withhold or heavily redact many, if not most, of these records as they are records that relate to the security or safety of persons and/or buildings located within the Commonwealth where public safety is likely to be jeopardized. See G.L. c. 4, § 7, cl.26(n). In addition, privacy concerns may require the further redaction of these records in accordance with G.L. c. 4, § 7, cl.26(c).". Current Appeal In his appeal petition, Mr. Snell states: "My public records clearly stated 'all records ... and any othei· documents relevant to 'presentment letters .... ' The public records package went beyond the scope of that requests, as it was only the 'presentment letters' and the A.G.'s conclusion as to what action &/or compensation was determined." In his petition, Mr. Snell also states that his request "seeks specifically 'investigations, determinations on the merits, or recommendatons for compensation' that does not require superfluous papers that are not directly related specifically to that request." Mr. Snell's original request sought "documents, materials, and other relevant papers concerning" MTCA claims, and fmiher, "every record, document, paper or any other material not hereto specifically requested" regarding those claims. Accordingly, it is unclear what documents Mr. Snell is seeking. If Mr. Snell wishes to narrow his request, he may modify his request in writing to the Office's RAO . .E xemptions (c) and (n) claims In his appeal petition, Mr. Snell states that § 7(26)(n) is "not applicable" to the requested records, and that "no privacy concerns relate to public records demand for compensation actions per MTCA." Whereas the Office is yet to produce redacted records, I find that Mr. Snell's app~al regarding these exemptions is premature, as the matter cannot be addressed at this time because the contents of these records are unclear.

Lorraine A.G. Tarrow, Esq. SPR19/2473 Page 3 December 30, 2019 Conclusion Based on the Office's response and Mr. Snell's appeal petition, I find the nature of his appeal is unclear. All petitions for appeal "shall specifically describe the nature of the requester's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(:f). Mr. Snell may resubmit an appeal to this office once the appeal has been clarified. See id. I will now consider this administrative appeal closed. Mr. Snell may appeal the substantive nature of the Office's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ s . , Supervisor of Records cc: Emory Snell, Jr.