Craig P. Shibley v. Worcester County District Attorney's Office (SPR 20220227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 10, 2022 SPR22/0227 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main St. G301 Worcester, MA 01608 Dear Attorney Relation: I have received a petition from Craig Shibley appealing the response of the Office of the Worcester District Attorney (Office) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2022, Mr. Shibley requested the following records regarding digitizing an identified Trooper’s 70-year old case file: 1. The individual and/or entity that ordered the digitization process; 2. The start & end date of the digitization process; 3. The individual(s) and /or entity that performed the file review process; 4. The start & end date of the file review process; 5. In an August 6, 2021 email you wrote the following: "They've requested that this [scanning] process be expedited." Identify who "they" is. 6. A catalog of the digitized case file … 7. The anticipated release date of the file … Previous appeal This request was the subject of a previous appeal. See SPR22/0137 Determination of the Supervisor of Records (February 1, 2022). The Office responded on January 25, 2022. Unsatisfied with the Office’s response, Mr. Shibley petitioned this office and this appeal, SPR22/0227, 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 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

Mark Relation, Esq. SPR22/0227 Page 2 February 10, 2022 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. 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. The Office’s January 25th response In its January 25th response, the Office stated, “… there are no records that meet the parameters of any of the seven items listed in your request.” In a conversation between the Office and a Public Records Division staff attorney, the Office confirmed that it does not possess a catalog of the digitized case file. Upon review of the file, it is unclear if the Office possesses any records responsive to the request, with the exception of the catalog of the digitized case file. 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). 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). Consequently, the Office must clarify whether responsive records exist. Conclusion Accordingly, the Office is ordered to provide Mr. Shibley with a response to the request, provided 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: Craig Shibley