Quan Doe v. Worcester County District Attorney's Office (SPR 20220001)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2022 SPR22/0001 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Mr. Quan Doe appealing the response of the Worcester 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 22, 2021, Mr. Doe requested, “Active District attorneys in Worcester Massachusetts including…names and titles, the personnel files, commissions, surety bonds/insurance, arrest records, FARA disclosures and any possible membership/corporate conflicting interests in organizations/businesses for the above described parties.” Previous Appeal The records sought were the subject of a previous appeal. See SPR21/2393 Supervisor of Records Determination (September 30, 2021). There, I closed Mr. Doe’s appeal because the Office stated that it intended on providing a supplemental response. The Office provided Mr. Doe its supplemental response on October 15, 2021. Unsatisfied with the Office’s supplemental response, Mr. Doe petitioned this office and this appeal, SPR22/0001, 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

Jennifer A. Pratt SPR21/0246 Page 2 January 12, 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 Division’s October 15th response On October 15, 2021, the Office stated, “attached you will find our previous response, which specified that ‘this office is not in possession of any other documents responsive to your request.’” Current Appeal In his appeal, Mr. Doe stated, “[I] have not been provided any of the public surety bonds or insurances. This has been willfully neglect[ed] since…July.” In a conference call between the Office and the Public Records Division, the Office stated that it reviewed its records again and can confirm that it does not possess records regarding public surety bonds. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the Office does not possess any records responsive to Mr. Doe’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Doe is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, .f) .A ~ ~ ~ - ~ 0 rw.J«M - Rebecca S. Murray Supervisor of Records cc: Quan Doe