Peter Jasper v. Hampden County District Attorney's Office (SPR 20212837)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 9, 2021 SPR21/2837 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 appeals The requested records were the subject of prior appeals. See SPR21/2138 Determination of the Supervisor of Records (September 7, 2021); SPR21/1767 Determination of the Supervisor of Records (July 19, 2021). In my September 7, 2021 determination, I ordered the Office to provide a response to Mr. Jasper. On September 20, 2021, the Office responded. Unsatisfied with the Office’s response, Mr. Jasper petitioned this office and this appeal, SPR21/2837, 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 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, Esq. SPR21/2837 Page 2 November 9, 2021 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. The Office’s September 20th response On September 20th, the Office stated, “…the [IT] Director replied that the retention on backup for email on the server is 90 days…unless the email transmission are still available from the specific user themselves, it is not possible to recover any emails older than 90 days…The only means available to examine any emails older than 90 days would be for every staff member to conduct a specific search of their saved/achieved emails…” Records Management Please be aware, safeguards must be instituted by the Office to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by the Records Conservation Board. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15 The Office must demonstrate whether the requested email records were permissibly destroyed in accordance with the statewide records retention schedule. 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, .f) .A ~ ~ ~ _ ~ 0 1WJW!(J. - Rebecca S. Murray Supervisor of Records cc: Peter Jasper