Peter C. Contos v. Executive Office of Public Safety and Security - Military Division (SPR 20220167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 2, 2022 SPR22/0167 Timothy F. Cullen Records Access Officer Executive office of Public Safety & Security Military Division 2 Randolph Road Hanscom AFB, MA 01731 Dear Mr. Cullen: I have received the petition of Peter C. Contos appealing the response of the Executive Office of Public Safety & Security, Military Division (Division) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 21, 2021, Mr. Contos requested various records relating to particular personnel and events of September 27, 1997. The Department responded on December 9, 2021, indicating that it had previously provided all responsive records. Unsatisfied with the Division’s response, Mr. Contos appealed, and this case 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 agency or municipality 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. Att’y 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. 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

Timothy F. Cullen SPR22/0167 Page 2 February 2, 2022 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. Current Appeal In his appeal petition, Mr. Contos contends that the Division “provided most of the information they claimed to have” and he argues that the Division “failed to address the request for the addresses [he] requested and to speak (write) to their J.A.G.” Mr. Contos also raises issues concerning mail and contraband procedures at the institution where he is incarcerated. See 103 CMR 481.10. Given that such issues do not fall within the authority of this office, I am unable to address such issues in this determination. The Division’s December 9th Response In its December 9, 2021 response, the Division states that “the documents [Mr. Contos has] already received are the only records of the September 1997 homicide investigation that remain in the possession of the Massachusetts Military Division.” In a letter to this office and Mr. Contos on January 27, 2022, the Division explained that the current request from Mr. Contos is part of “a series of public records requests . . . for records or other documents pertaining to a homicide investigation that was conducted at Otis Air National Guard Base in September 1997.” The Division further explains that it disclosed all responsive records in a series of responses on October 4, October 18, and October 25, 2021. Additionally, the Division reiterates that “any and all documents that are responsive to his request and in the control or custody of the Military Division have been disclosed.” The Division further explains the Mr. Contos’s “request for an address to contact the Massachusetts Military Division has been consistently answered.” Possession, Custody, or Control of 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). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Additionally, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Where the Division has confirmed that it previously provided all records responsive to Mr. Contos’s request, I will now consider this administrative appeal closed. If Mr. Contos is not

Timothy F. Cullen SPR22/0167 Page 3 February 2, 2022 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)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, .. . - .·-J · - I _', . . . -... ·. . ~ Rebecca S. Murray Supervisor of Records cc: Peter C. Contos