Mark Adams v. Executive Office of Public Safety and Security (SPR 20222143)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 28, 2022 SPR22/2143 Arielle Mullaney, Esq. Assistant General Counsel Executive Office of Public Safety and Security One Ashburton Place, Room 2133 Boston, MA 02108 Dear Attorney Mullaney: I have received the petition of Mark Adams appealing the response of the Executive Office of Public Safety and Security (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 23, 2022, Mr. Adams requested: [1] All information pertaining to the investigation of the unlawful reproduction and dissemination of any files, notes, [online] or in physical form[;] [2] All communications between any employees, agents or investigators with anyone pertaining to this investigation, including emails, text messages, social media etc[.][;] [3] All screenshots sent out or found to be possibly sent out . . . to anyone pertaining [to a named individual] and his notes at the [medical examiner’s] office[;] [4] The names and addresses of all people who were sent information, screenshots, pictures, emails, texts or any communication of any sort pertaining to [identified individuals;] [5] The names and information of any employees at the [medical examiner’s] office or any employee who sent out any information, reviewed [an identified individual’s] files/notes unauthorized either internally or externally. Previous Appeal This request was the subject of a previous appeal. See SPR22/1913 Determination of the Supervisor of Records (August 31, 2022). In my August 31st determination, I ordered the Office to provide Mr. Adams with a response to his request. On August 26, 2022, the Office provided a response to Mr. Adams. Unsatisfied with the Office’s response, Mr. Adams petitioned this office and this appeal, SPR22/2143, was opened as a result. 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

Arielle Mullaney, Esq. SPR22/2143 Page 2 September 28, 2022 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current Appeal In his current appeal, Mr. Adams asserts: This is clearly an incomplete production. We did not receive a single email, not, communication of any sort between anyone at the Commonwealth to or from in regards to the matter in hand and the investigation. I find it impossible to believe that not one email was sent between anyone of this matter. We did not receive 1 single email between anyone at the OCME…. The PDF produced titled “Summary of Investigation Into Complaint To Medico- Legal Commission” specifically references that “each interview was memorialized through notes”, none were produced. It also states that “In addition to the interview notes additional documentation such as emails and letters were also received”. None were produced. This PDF also lists out 6 individuals…who were interviewed as well as 6 individuals (names redacted who co signed [an identified individual’s] letter. Not a single email, note, document of any nature was produced about, to/from these individuals…. In a phone conversation with this office on September 27, 2022, the Office confirmed that no additional responsive records exist.

Arielle Mullaney, Esq. SPR22/2143 Page 3 September 28, 2022 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 Office does not possess any additional records responsive to Mr. Adams’ request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Adams 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, Manza Arthur Supervisor of Records cc: Mark Adams