Susan L. Bach v. Attorney General's Office (SPR 20212542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 18, 2021 SPR21/2542 Lorraine A. G. Tarrow, Esq. Records Access Officer Attorney General’s Office 1 Ashburton place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Susan Bach appealing the response of the Attorney General’s Office (Office/AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2021, Ms. Bach stated she was requesting: …any other public records of communications regarding the aforementioned matters, including the various public records requests, that the AGO has compiled since 2015. This request includes any communications between the AGO, [identified individuals] or their representatives. The Office responded on September 24, 2021. Unsatisfied with the Office’s response, Ms. Bach petitioned this office and this appeal, SPR21/2542, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Lorraine A. G. Tarrow, Esq. SPR21/2542 Page 2 October 18, 2021 If there are any fees associated with a response a written, good faith estimate must be 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 September 24th response In its September 24, 2021 response, the Office cites Chawla, and states that “. . . the first part of [Ms. Bach’s] request for all AGO communications compiled since 2015 ‘regarding the aforementioned matters, including the various public records requests …’ does not meet the ‘reasonableness’ standard. It does not provide us with information sufficient to ‘understand exactly what [you] are looking for.’ Without further clarification, we would have to ‘interpret the scope of what is sought’ in order to identify custodians and design search parameters, and then ‘make fine judgments’ as to whether the records we find are in fact responsive. Unless and until you provide us with such clarification or otherwise modify your request, we cannot process this portion of your request further.” Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. l 784CV02087 (January 23, 2019). In a letter to the Office dated September 28, 2021, Ms. Bach stated “[y]ou know exactly what records I am requesting. It is axiomatic that the creator or the records, the AGO, always has superior knowledge of the records they create and maintain. Presumably, as the AGO’s Chief Public Records Officer you oversee public records requests and responses and the compilation and maintenance of records. You have been the primary point of contact regarding requests related to me and Eckersley related to the tangle of cases and press involvement your office spawned, for over a decade, and certainly since 2015. Therefore, you maintain and create reports, emails, letters, memos, and any other records. Surely, you report your interactions with me, and others, to your superiors at various meetings and in the form of reports, memos, and emails. I am seeking those records.” Please be aware that the request must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior Court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Chawla, Suffolk. Sup. No. l 784CV02087, at 2. Based on the foregoing, I find it is unclear the specific records Ms. Bach is requesting from the Office. Ms. Bach is encouraged to provide the Office with the needed clarification regarding the records she is seeking. The Office must use its knowledge of the records to facilitate the provision of any responsive 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), (b)(ii). With respect to the second part of Ms. Bach’s request, regarding any communications between the AGO and identified individuals, the Office states that “. . . there are no

Lorraine A. G. Tarrow, Esq. SPR21/2542 Page 3 October 18, 2021 communications with that email address during the time period requested.” 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). Where the Office explains it does not possess records responsive to the second request, I find that Ms. Bach’s appeal pertaining to that request has been resolved. Previous appeal – SPR17/1203 In her petition, Ms. Bach objects to responses provided by the Office regarding a previous public records requests that had been the subject of previous appeals. See SPR17/1179 Determination of the Supervisor of Records (September 7, 2017) and SPR17/1203 Determination of the Supervisor of Records (September 14, 2017). Subsequent to the September 14th determination, the Office provided a supplemental response on January 31, 2018. Please note that the Public Records Regulations, which govern the procedural aspects of all appeals, require that an appeal to this office be filed within ninety days of the date of the request letter, or within ninety days of the date of a written response from the record custodian. See 950 C.M.R. 32.08 (1)(d); 950 C.M.R. 32.08 (1)(e). Accordingly, where this portion of Ms. Bach’s appeal pertains to requests and responses from 2017 and 2018, I decline to issue a determination regarding this matter. Ms. Bach may re-submit her requests to the Office and, if applicable, file an appeal with this office in accordance with 950 C.M.R. 32.08. Conclusion Upon clarification of the first part of her request, the Office must provide a response to Ms. Bach in a manner consistent with this determination, 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: Susan Bach