Steven L. Smith v. Suffolk County Sheriff's Department (SPR 20230049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0049 Jordan E. Mitchell, Esq. Assistant General Counsel Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Attorney Mitchell: I have received the petition of Steven L. Smith appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Smith requested the following: [1.] Copies of grievances filed against the Legal Department and Civilian Mail officer, responses to them, and appropriate number of appeal forms; and [2.] Copies of fax sheets, fax memos, reports, and grievances faxed to [a specified individual] at Barnstable County Jail. Previous appeal This request was the subject of a previous appeal. See SPR22/2646 Determination of the Supervisor of Records (November 30, 2022). The Department provided a response on December 20, 2022. Unsatisfied with the response, Mr. Smith petitioned this office and this appeal, SPR23/0049, 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). 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

Jordan E. Mitchell. Esq. SPR23/0049 Page 2 January 24, 2023 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s December 20th response In its December 20, 2022 response, the Department stated that “[t]he Department provided you with all responsive documents to your request on December 1, 2022. As to your first request, the Department provided you with copies of all of the grievances you filed against the Legal Department and Civilian Mail officer and all of the grievances have answers on the forms. As to your second request, the Department sent you all of the documents that the Department sent to Barnstable County Jail.” No Duty to Create Records Under the Public Records Law, there is no obligation to create a record in response to a public records request. See G. L. c. 66, § 6A(d), 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only 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 has provided a response to Mr. Smith’s request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Smith is not satisfied with the resolution of this administrative appeal, he 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: Steven L. Smith