David G. Magraw v. Norfolk County District Attorney's Office (SPR 20200937)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2020 SPR20/0937 Meagen K. Monahan, Esq. Assistant District Attorney Secondary Records Access Officer Office of the Norfolk County District Attorney 45 Shawmut Road Canton, MA 02021 Dear Attorney Monahan: I have received the petition of David G. Magraw appealing the response of the Office of the Norfolk County District Attorney (NDAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 26, 2020, Mr. Magraw posed sixteen (16) questions seeking an answer from the NDAO’s office pertaining to the Grand Jury session, his 1994 trial and his 1999 re-trial pertaining to his prosecution and conviction. In an April 10, 2020 response, the NDAO informed Mr. Magraw that the NDAO has no records responsive to his sixteen (16) posed questions/request. As a result, Mr. Magraw petitioned the Supervisor of Records (Supervisor), and this appeal was opened. No duty to create records Under the Public Records Law, the NDAO is not required to create records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. 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). In addition, Mr. Magraw should be advised, the reason for which a requestor seeks access to, or a copy of, a public record or public information does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). 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

Meagen K. Monahan, Esq. SPR20/0937 Page 2 June 25, 2020 The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means.") 950 C.M.R. 32.08(1)(a). As such, Mr. Magraw may wish to consider another means of seeking to obtain answers to his questions. Conclusion Accordingly, given that the NDAO has no records responsive to Mr. Magraw’s questions, and no duty to answer questions under the Public Records Law, I find the NDAO met their burden in responding to this request. I consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: David G. Magraw