Joseph Viglione v. Essex County District Attorney's Office (SPR 20201129)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2020 SPR20/1129 Kayla Johnson, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Johnson: I have received the petition of Joseph Viglione 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.R. 32.08(1). Specifically, Mr. Viglione requested “the names of all Essex County Law Enforcement Officers subject to Discovery Notices a.k.a. Essex County Brady List.” The DAO responded on July 8, 2020, stating that it does not possess records responsive to this request. Unsatisfied with this response, Mr. Viglione petitioned this office and this appeal, SPR20/1129, was opened as a result. Current Appeal In its July 8, 2020 response, the DAO states that it “is not in possession of any such list,” and explains that “[p]rosecutors in this Office make disclosures of any and all potentially exculpatory information on a case-by-case basis.” In a phone call with a staff attorney of the Public Records Division on July 22, 2020, you confirmed that the DAO does not possess the requested list. No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. 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, § 10(a)(ii). Accordingly, whereas the DAO has informed Mr. Viglione that it does not possess the requested record, I will consider this administrative appeal closed. If Mr. Viglione is not satisfied with the result of this administrative appeal, please be advised that this office shares jurisdiction 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

Kayla Johnson, Esq. SPR20/1129 Page 2 July 22, 2020 with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph Viglione