Christopher Burrell v. Norfolk District Attorney's Office (SPR 20200512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords March 24, 2020 SPR20/0512 Meagen K. Monahan, Esq. Assistant District Attorney Norfolk District Attorney's Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Monahan: I have received the petition of Christopher Burrell of WGBH appealing the response of the Norfolk 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 March 5, 2020, indicating that it does not possess responsive information. Unsatisfied with this response, Mr. Burrell petitioned this office and this appeal, SPR 20/0512, 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 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

Meagan K. Monahan, Esq. SPR20/0512 Page 2 March 24, 2020 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 March 5 2020, providing a response to requests 1 and 4, and indicating that it does not possess responsive information for requests 2 and 3. Specifically, the DAO states that it "does not maintain its records in such a fashion that would allow us to provide yearly figures. The public records statute does not require an agency to create records in response to a request." In a March 13, 2020 letter to this office, the DAO states that "Mr. Burrell's request was reasonably read as seeking yearly statistical figures and his appeal acknowledges that his request sought 'the number of applications received and then certified by' the NDAO. As indicated in its response, the NDAO does not maintain its records in such a fashion that would allow us to provide these yearly figures." 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).

Meagan K. Monahan, Esq. SPR20/0512 Page 3 March 24, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Burrell