Robert Wilson v. Worcester County District Attorney's Office (SPR 20220606)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 24, 2022 SPR22/0606 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 Robert Wilson appealing the response of the Office of the Worcester District Attorney (Office) to request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 14, 2022, Mr. Wilson requested a copy of the defendant’s brief in a named Supreme Judicial Court (SJC) case. On March 2, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Wilson petitioned this office and this appeal, SPR22/0606, 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. 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 March 2nd response In its March 2, 2022, response the Office stated, “…we are unable to satisfy your request as the requested court documents are not within our office's possession, custody, or control.” 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 SPR22/0606 Page 2 March 24, 2022 Current Appeal In his current appeal, Mr. Wilson suggested that the Office has records responsive to his request because the office prosecuted the above referenced SJC case. Public records in the possession, custody or control of a records custodian In a phone call with a staff attorney of the Public Records Division and the Office, the Office suggested that the Office does not have any records responsive to the request. The Office is advised that 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 (emphasis added). See G. L. c. 66, § 10(a)(ii), (b)(ii). Where the Office was a named party in the above referenced litigation it is unclear how the department does not receive a copy of the requested record. See G. L. c. 4, § 7(26) (“‘Public records’ shall mean all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency…”). Conclusion Accordingly, the Office is ordered to provide Mr. Wilson with a response to his 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: Robert Wilson