Yisbert Lara v. Suffolk County Sheriff's Department (SPR 20220704)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 6, 2022 SPR22/0704 Maria F. Romero, Esq. Assistant General Counsel Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Yisbert Lara appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 30, 2021, Mr. Lara requested “…a copy of my visitor entry log that show all persons…that visited me at Nashua County Jail for the following period of time: July 20, 2006 through December 15, 2007.” On December 20, 2021, Mr. Lara submitted the required authorization form. Prior Appeal The requested records were the subject of a prior appeal. See SPR22/0464 Determination of the Supervisor of Records (March 7, 2022). In my March 7th determination I found that Department provided a response on March 4, 2022, and closed the appeal. Unsatisfied with the Department’s response, Mr. Lara petitioned this office and this appeal, SPR22/0704, 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

Maria F. Romero, Esq. SPR22/0704 Page 2 April 6, 2022 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 Department’s March 7th response On March 7, 2022, the Department provided the requested records. Current Appeal In his appeal, Mr. Lara suggested that the Department failed to provide complete information. In a phone conversation between a member of the Public Records Division and a member of the Department, the Department confirmed that there are no additional records responsive to Mr. Lara’s request. 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 Where the Department does not possess any additional records responsive to Mr. Lara’s request, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Lara 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, Rebecca S. Murray Supervisor of Records cc: Yisbert Lara