Colman Herman v. Cape & Islands District Attorney's Office (SPR 20210927)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 27, 2021 SPR21/0927 Tara Miltimore, Esq. Assistant District Attorney Cape and Islands District Attorney’s Office 3231 Main Street P. O. Box 455 Barnstable, MA 02630 Dear Attorney Miltimore: I have received the petition of Colman Herman appealing the response of the Cape and Islands District Attorney’s Office (Office) to his request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2021, Mr. Herman requested, “… copies of any and all communications related to the state auditor’s audit of the Cape and Islands district attorney’s case management system.” On March 23, 2021, Mr. Herman expanded his request to include, “… communications of the audit of the Juvenile Diversion Program and the Victim Witness Assistance Program.” The Office responded on March 23, 2021 and March 31, 2021. Unsatisfied with the Office’s responses, Mr. Herman petitioned this office and SPR21/0927 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, § 10A(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). 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, § 10(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Tara Miltimore, Esq. SPR21/0927 Page 2 April 27, 2021 The Office’s March 23rd and 31st Responses In its March 23, 2021 response, the Office stated, “… [t]he state did not perform an audit of the Cape & Islands case management system. The audit was regarding our Juvenile Diversion Program and our Victim Witness Assistance Program. I have … attached the press release.” Subsequently, the Office provided an email chain relating to the audit. On March 31, 2021, the Office stated, “[the Office] will reach out to our IT director for a more comprehensive search.” Current Appeal In his appeal, Mr. Herman stated, “… [i]t is hard to imagine that were no internal communications about the audit, no communications between the DA and the state auditor, etc.” Despite the Office’s responses, it remains unclear if it possesses additional records responsive to the request. Particularly, it is uncertain if the Office possesses any internal communications regarding the audit. To the extent that the requested records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). 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). The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Herman with a response to the request, provided 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: Colman Herman