Gregory Smith v. Cape & Islands District Attorney's Office (SPR 20200171)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 12, 2020 SPR20/0171 Tara Miltimore, Esq. Cape and 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 and 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 September 23, 2019, Mr. Smith requested the following records within the DAO: • A complete list of the official individual email addresses for all Cape & Islands ADAs • Police training materials and all related documents as they are created and used concerning training sessions for the three year period going forward from September 23, 2019 • Information concerning the identity of the ADA that represented the Commonwealth in a hearing related to Commonwealth v. Gregory Smith on March 30, 2017. Previous Determination This request was the subject of three (3) previous determinations: See SPR19/1933 Determination of the Supervisor of Records (October 3, 2019). In my October 3rd Determination, the DAO was ordered to provide Mr. Smith with a response in a manner consistent with the Public Records Law, and its Regulations within ten (10) business days. See SPR19/2237 Determination of the Supervisor of Records (November 19, 2019). In my November 19th Determination, I learned a representative from the DAO that it responded to the request in a letter dated on November 19, 2019. See SPR19/2425 Determination of the Supervisor of Records (December 19, 2019). In my December 19th determination, I learned the DAO responded to Mr. Smith's request with a response sent on December 18, 2019. 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

Attorney Tara Miltimore SPR20/0l 71 Page 2 February 12, 2020 Previous Appeal A representative from the DAO provided a response on December 18, 2019 claiming "this office has repeatedly provided our office's contact information to Mr. Smith. We do not have a master list of ADA emails." Unsatisfied with this response issued by the DAO, Mr. Smith petitioned this office and this appeal, SPR20/0171, was opened as a result. Current Appeal Mr. Smith, on January 29, 2020, in response to the DAO's December 18111 response confirms "most elements of my request for contact information were satisfied ... [t]he DAO however has still failed to provide staff email addresses for the list of individuals provided earlier." Records in Existence 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). In light of the issues raised in Mr. Smith's appeal regarding the existence of responsive records, and despite the DAO's responses, I find it is unclear why responsive records have not been provided. Specifically, the DAO must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b )(ii). If such records were destroyed, the DAO must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly,the DAO is ordered to provide Mr. Smith with said response 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. Mr. Smith may appeal the substantive nature of the Department's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mr. Gregory Smith