Eleonora Bianchi v. Suffolk County Sheriff's Department (SPR 20222004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/2004 Maria F. Romero, Esq. Assistant General Counsel Records Access Officer Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Eleonora Bianchi, of The New Bedford Light, appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 19, 2022, Ms. Bianchi requested the Department’s “… yearly legal expenses for any and all litigation by or against [named person] …. [and] the data be broken down by year [for] … 01/01/2015 to 08/19/2022.” The Department responded on August 31, 2022. Unsatisfied with the response Ms. Bianchi petitioned this office and this appeal, SPR22/2004, 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. 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. SPR22/2004 Page 2 September 13, 2022 The Department’s August 31st response In its August 31, 2022 response, the Department advised it “…has no responsive documents.” No Duty to Create Records In a communication between a Public Records Division senior attorney and a Department representative, the Department confirmed that it has no records responsive to the request. Please be advised, under the Public Records Law the Department 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 records responsive to Ms. Bianchi’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Bianchi is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Eleonora Bianchi Jordan Mitchell, Esq.