Peter Jasper v. Berkshire District Attorney's Office (SPR 20211778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 28, 2021 SPR21/1778 Richard M. Dohoney, Esq. Assistant District Attorney Records Access Officer Berkshire District Attorney's Office 7 North Street Pittsfield, MA 01201 Dear Attorney Dohoney: I have received the petition of Peter Jasper appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On June 21, 2021, Mr. Jasper requested, “... all incoming and outgoing emails from the District Attorney’s Office of Superior cases only for the days of June 9, 10, and 11, 2020.” The Office responded on June 23, 2021. Unsatisfied with the Office’s response, Mr. Jasper petitioned this office and SPR21/1778 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(b)(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). If there are any fees associated with a response a written, good faith estimate must be 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

Richard M. Dohoney, Esq. SPR21/1778 Page 2 July 28, 2020 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s June 23rd Response In its June 23rd response, the Office stated, “… the Office does not deny [the] public record request. However, we do ask that you narrow [the] request by providing more specifics.” The Office explained that, “… the Office sends and receives a high volume of emails every day, each one of those would require an attorney to review and determine which records are subject to public disclosure.” The Office requested that Mr. Jasper “… provide specifics as to what documents [are being] requested – names, case types, communications between certain offices or individuals, etc.” Based on Mr. Jasper’s appeal, it is unclear if the Office possesses records responsive to this 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). The Office must clarify this matter. Also, a 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. . . .” See G. L. c. 66, § 10(b)(iv). Conclusion Accordingly, the Office is ordered to provide Mr. Jasper with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Peter Jasper