Todd Wallack v. Middlesex County Sheriff's Office (SPR 20221151)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2022 SPR22/1151 Malav Patel, Esq. Associate Legal Counsel Middlesex County Sheriff’s Office 400 Mystic Avenue, 4th Floor Medford, MA 02155 Dear Attorney Patel: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Middlesex County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Grace Ferguson, a WBUR Fellow, requested a copy of “…records concerning sworn officers of the Sheriff’s Office dating back to January 1, 2010: all internal affairs cases of domestic violence, and all internal affairs cases of sexual violence, including but not limited to rape and sexual.” Prior appeal The requested records were the subject of a prior appeal. See SPR22/0917 Determination of the Supervisor of Records (Supervisor) (April 27, 2022). Where the prior appeal was opened due to a nonresponse, I ordered the Office to provide Ms. Ferguson with a response to the request. On May 16, 2022, the Office provided a response denying the request under G. L. c. 6E, § 1, Exemption (c) and Exemption (f) of the Public Records Law. As a result, Mr. Wallack petitioned the Supervisor, and the current appeal was opened. In his petition, Mr. Wallack asserts, “[t]he response from the [Office] rejected our request, but does not make it clear whether it has any responsive documents. The public records law requires agencies to identify any records they intend to withhold.” 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 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

Malav Patel, Esq. SPR22/1151 Page 2 May 31, 2022 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). Records in existence 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). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Based on the Office’s May 16th response, and in light of Mr. Wallack’s appeal regarding the existence of responsive records, I find it is unclear what records the Office possesses that may be responsive to the request. The Office must identify what type of records(s) exist and it has in its possession that are responsive to Mr. Wallack’s request, and that the Office withheld. See G. L. c. 66, § 10(a)(ii), (b)(ii). The Office must clarify this issue. Order Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request 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: Todd Wallack, WBUR