David Nathanson v. Massachusetts Parole Board (SPR 20201557)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2020 SPR20/1557 Charles J. Walsh, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Walsh: I have received the petition of David Nathanson, Esq. of Wood & Nathanson, LLP appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Nathanson requested the parole records of an identified decedent. Attorney Nathanson indicated, “I believe he had multiple hearings between 1984 and 1987. While I am requesting his entire file, I am particularly interested in documents describing the events of conviction: [the identified decedent’s] version, police version, District Attorney’s version, and any other person’s version of the crime.” In a September 1, 2020 response to Attorney Nathanson, the Board states, “[y]ou requested the parole file for [an identified and deceased inmate]. After a thorough search of our files, we were not able to locate any documents responsive to your request.” As a result of the Board’s response, on September 1st, Attorney Nathanson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Nathanson asserts: “I requested the parole file for [an identified deceased person]. The [Board] indicates that they have no such file. I do not believe [the Board] made a diligent search for the file. The [identified person’s] parole was high profile and the [B]oard was even sued for paroling him. I believe that such records exist and would be found if sought diligently. I am attaching for reference, the death certificate of [the identified person], and an article regarding his parole and the subsequent events leading to his death.” 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

Charles J. Walsh, Esq. SPR20/1557 Page 2 September 16, 2020 No responsive records Under the Public Records Law, the Board is not required to create records 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. See G. L. c. 66, § 10(a); 32 Op. Atty. Gen. 157, 165 (May 18, 1977). 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). Based on Attorney Nathanson’s appeal petition, I find the Board must clarify whether the records existed and were permissibly destroyed or whether the records did not exist. The Board must indicate whether it retained the inmate parole records, requested by Attorney Nathanson, in compliance with the Statewide Records Retention Schedule pertaining to Inmate Parole Records. See Public Safety Records. J07-12: Inmate Parole Records. This office encourages the parties to communicate to facilitate providing Attorney Nathanson with the records he seeks if, after a further search, the records exist. See G. L. c. 66, § 10(b)(vii). Conclusion Accordingly, the Board is ordered to provide Attorney Nathanson with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Nathanson, Esq., Wood & Nathanson, LLP