Richard Villar v. Essex District Attorney's Office (SPR 20200252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor af Records

February 19, 2020 SPR20/0252 Kristen W. Jaing, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970

Dear Attorney Jaing:

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, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, Mr. Villar requested “tape recordings of the 3 hearings that Shauna Harrington had in your Court and if you do not have them, I request the date that they were destroyed, the name of the person who did or authorized their destruction and any documentation that proves that they were in fact destroyed and by whom.”

Prior Appeal

The requested records have been the subject of previous appeals. See SPR 19/2157 Determination of the Supervisor of Records (November 5, 2019); SPR 19/1891 Determination of the Supervisor of Records (September 27, 2019). In my November 5"" determination, I found that the DAO had met its burden in responding to this portion of the request by informing Mr. Villar that it had never possessed transcripts of the requested hearings.

On December 22, 2019 Mr. Villar submitted a new request, seeking recordings of the hearings. The DAO responded on January 14, 2020, stating that it does not possess—and has never possessed—the requested records. Unsatisfied with the response he had received from the DAO, Mr. Villar petitioned this office and this appeal, SPR 19/0252, was opened as a result.

Current Appeal

In his request, Mr. Villar seeks tapes “from dates: 8/17/06, 9/25/06, 9/9/11, and 10/28/11” pertaining to a certain case. In its October 7, 2019 response, the DAO states that “it appears that these dates correspond with the following events: an arraignment...a pre-trial hearing. ..a default removal hearing...and a pre-trial hearing...” The DAO further states that “[i]n the ordinary course, transcripts for these types of non-substantive court matters would not have been ordered

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. Jaing, Esq. SPR20/0252 Page 2 February 19, 2020

by this Office, and this Office’s electronic case management records do not indicate that any transcripts were requested or received for this case.” In its January 14" response, the DAO confirms its statements from its October 7" response, and further states it does not possess audio recordings of the requested proceedings either.

Under the Public Records Law, the Records Access Officer (RAO) is not required to create any record(s) in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, the RAO shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.M.R. 32.06(3)(c)(2).

In his appeal petition, Mr. Villar notes that the DAO “did not confirm that the tape were [sic] destroyed, the name of the person who did or authorized the destruction nor provide any documentation that proves that they were in fact destroyed and by whom.” Despite Mr. Villar’s assertion, the DAO’s January 14" response states that the DAO was never in possession of the recordings that Mr. Villar requested.

Accordingly, whereas the DAO has informed Mr. Villar that it does not possess any transcripts or audio recordings for the requested dates, and did not ever possess these records, | find it has met its burden in responding to this request.

Conclusion

Accordingly, whereas the DAO has met its burden to respond to this request, I will consider this administrative appeal closed. If Mr. Villar is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b)(pursuit of administrative appeal does not limit availability of applicable judicial remedies).

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Sincerely,

Rebecca S. Ween Muna

Supervisor of Records ce: Richard Villar