Christopher Burrell v. Cape & Islands District Attorney's Office (SPR 20200507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 23, 2020 SPR20/0507 Tara Miltimore, Esq. Assistant District Attorney Cape & Island District Attorney's Office 3231 Main Street P.O. Box455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Christopher Burrell of WGBH appealing the response of the Northwestern 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, Mr. Burrell requested: • " .... documents that show your office's policy for handling requests for certification of federal 1-918, Supplement B forms (issued by U.S. Citizen and Immigration Services • How many requests from individuals seeking assistance with 1-918, Supplement B forms did the Cape and Islands District Attorney's Office receive in each of the last eight years, dating back to Jan. 1, 2012? • Of these requests, how many of these federal forms did your office sign or certify in each year? • Does your office have an authorized or designated staff member who certifies these forms?" The DAO responded to Mr. Burrell on February 27, 2020, indicating that it does not possess responsive information. Unsatisfied with this response, Mr. Burrell petitioned this office and this appeal, SPR 20/0507, 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 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 Miltimore, Esq. SPR20/0507 Page 2 March 23, 2020 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). 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. Current Appeal The DAO responded to Mr. Burrell on February 27, 2020, stating that the Office "handles U-visa requests on a case-by case basis. We do not have written policies nor do we track the number ofrequests." On March 3, 2020, the DAO further clarified that it "does not track requests from individuals seeking assistance with 1-918, nor do we track how many federal forms our office signed or certified each year." No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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, § lO(a)(ii). Whereas the DAO has informed Mr. Burrell that it does not possess the requested information, I find it has met its burden in responding to this request. Conclusion Accordingly, I will consider this appeal closed. If Mr. Burrell 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, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, !MwA~- Rebecca S. Murray Supervisor of Records cc: Christopher Burrell