Zoe Nadig v. Berkshire District Attorney's Office (SPR 20222041)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 20, 2022 SPR22/2041 Andrew McKeever Director of Communications Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Mr. McKeever: I have received the petition of Zoe Nadig appealing the response of the Berkshire District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2022, Ms. Nadig requested “any and all records pertaining to the investigation of” a specified incident. The Office responded on August 31, 2022, providing responsive records. Unsatisfied with the Office’s response, Ms. Nadig appealed, and this case 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. Att’y 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 August 31st Response In its August 31, 2022 response, the Office provides nine pages of responsive records. 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

Andrew McKeever SPR22/2041 Page 2 September 20, 2022 In her appeal petition, Ms. Nadig contends that the Office’s response is “missing records.” Please be 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. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Additionally, in accordance with the Public Records Law, 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). In an email to this office on September 8, 2022, a representative for the Office confirmed that the Office has provided “the only records [the Office] located that are responsive to [Ms. Nadig’s] request.” Conclusion Where the Department has confirmed that it does not possess additional records responsive to Ms. Nadig’s request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Zoe Nadig