Peter Jasper v. Hampden County District Attorney's Office (SPR 20212138)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2138 Joseph A. Pieropan, Esq. Records Access Officer Hampden County District Attorney’s Office 50 State Street Springfield, MA 01102-0559 Dear Attorney Pieropan: I have received the petition of Peter Jasper appealing the response of the Hampden County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; 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.” Prior appeal The requested records were the subject of a prior appeal. See SPR21/1767 Determination of the Supervisor of Records (July 19, 2021). In my July 19th determination, I ordered the Office to provide a response to Mr. Jasper. On July 29, 2021, the Office responded. Unsatisfied with the Office’s response Mr. Jasper petitioned this office and this appeal, SPR21/2138, 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); 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). To meet the specificity requirement a custodian 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

Joseph A. Pieropan SPR21/2138 Page 2 September 7, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The Office’s July 29th response On July 29, 2021, the Office stated, “…[r]egarding the existence of any emails from June of 2020, please note that this Office is not able to retain emails on its main server that are older than 90 days.” Records in existence 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). In light of the issues raised in Mr. Jasper’s appeal regarding the existence of responsive records, I find it is unclear whether responsive records exist, and if they do, why they have not been provided. The Office must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Conclusion Accordingly, the Office is ordered to provide Mr. Jasper with a response to his 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: Peter Jasper