Eleanor Umphres v. Norfolk County District Attorney's Office (SPR 20201817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 13, 2020 SPR20/1817 Laura A. McLaughlin, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Attorney Eleanor Umphres appealing the response of the Norfolk 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, on June 12, 2020, Attorney Umphres requested four categories of records, including communications between named individuals, as well as “incident reports, arrest records, investigation files, police reports, papers, photographs, and recorded tapes.” Attorney Umphres also requested “to view Exhibit No. 62 from Commonwealth v. Labriola (1973): phone records.” Previous Appeals This request is the subject of a previous appeals. See SPR20/0967 Determination of the Supervisor of Records (July 2, 2020); SPR20/1086 Determination of the Supervisor of Records (July 17, 2020); SPR20/1637 Determination of the Supervisor of Records (September 23, 2020). In my September 23rd determination, I found the DAO must clarify which records existed and were destroyed, and provide confirmation that prior approval for any destruction was received. The DAO was ordered to provide Attorney Umphres with a response in compliance with the Public Records Law and its Access Regulations within 10 business days. The DAO provided said response on September 24, 2020. Unsatisfied with the September 24th response provided by the DAO, Attorney Umphres petitioned this office and this appeal, SPR20/1817, was opened as a result. Current Appeal In its September 24th response, the DAO indicates it “…is unable to determine whether any records were destroyed. If these records existed they would have been created or potentially destroyed between 1973 and 1991. Unfortunately, there is no one at the NDAO with personal 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

Laura A. McLaughlin, Esq. SPR20/1817 Page 2 October 13, 2020 knowledge of the case file from that time period.” In her appeal, Attorney Umphres contends “ADA McLaughlin failed to adequately respond to Supervisor Murray’s requirement that the DAO clarify which records were destroyed and provide confirmation that prior approval for any destruction was received.” Considering the fact the DAO responded within forty-eight hours of the September 23rd determination, Attorney Umphres states “…such haste leads me to believe that Attorney McLaughlin did not attempt to search the storage area/basement/archives/warehouse, etc. for the requested records.” 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). Also, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In light of Attorney Umphres appeal, and despite the DAO’s responses, the DAO has not demonstrated whether it conducted a thorough search in confirming whether responsive records exist, or existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). I find the DAO must clarify what steps were taken in showing an exhaustive search was performed. Further, if any records were found to be destroyed, the DAO must provide confirmation that prior approval by the Records Conservation Board for any destruction was received. Conclusion Accordingly, the DAO is to provide Attorney Umphres with a response in compliance with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Umphres may appeal the substantive nature of the DAO’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eleanor Umphres, Esq.