Gregory Smith v. Cape & Islands District Attorney's Office (SPR 20200465)

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

Rebecca S. Murray Supervisor of Records

March 17, 2020 SPR20/0465

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, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on September 23, 2019, Mr. Smith requested three categories of records, including “[a] complete list of the official individual email addresses for all Cape & Islands ADAs.”

Previous Determination

This request was the subject of four previous determinations. See SPR19/1933 Determination of the Supervisor of Records (October 3, 2019); SPR19/2237 Determination of the Supervisor of Records (November 19, 2019); SPR19/2425 Determination of the Supervisor of Records (December 19, 2019); SPR20/0171 Determination of the Supervisor of Records (February 12, 2020), In my February 12" determination I ordered the DAO to provide Mr. Smith with a further response. .

On February 27, 2020, the DAO provided a supplemental response to Mr. Smith. Unsatisfied with the DAO’s response, Mr. Smith appealed to this office and SPR20/0465 was opened as a result.

Current Appeal

In its February 27" response, the DAO states “[p]lease be advised this office has repeatedly provided our contact information to you. We do not have a master list of ADA emails. Anyone interested in contacting a specific assistant district attorney or other member of our office is welcome to call the main office and they will be directed accordingly. Also, since our office is now engaged in legal proceedings with you as a party, we will contact the Attorney General regarding any future communication.”

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 SPR20/0465 Page 2 March 17, 2020

No Duty to Create a Record; Database Extraction

Under the Public Records Law, the Commission is not required to create a list of records or any record in response to a public records request. However, please note that under the Public Records Law Access Regulations, “furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data exists at the time of the request and is segregable from nonresponsive and exempt data.” 950 C.M.R. 32.07(1)(f).

In light of the issues raised in Mr. Smith’s appeal regarding the existence of responsive records, the DAO must clarify whether or not it possesses any responsive records and provide such response in compliance with the Public Records Law and its Regulations, I understand that a staff member of the Public Records Division attempted to contact you regarding this matter but was unable to reach you prior to the issuance of this determination.

Conclusion

Accordingly, the DAO is ordered to provide Mr. Smith with said response as soon as practicable. 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 DAO’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Sincerely,

Rebecca S. Murray Keleeca Wun

Supervisor of Records

ce: Gregory Smith