Nasser Eledroos v. Suffolk County District Attorney's Office (SPR 20230117)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 1, 2023 SPR23/0117 Andrew Doherty, Esq. Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Nasser Eledroos appealing the response of the Suffolk County 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 July 7, 2022, Mr. Eledroos requested, “…a spreadsheet containing SCDAO’s charge filing and dispositional data for all cases filed between the dates 1/1/2022 and 6/30/2022.” The Office responded on October 31, 2022. Unsatisfied with the response, Mr. Eledroos petitioned this office, and this appeal, SPR23/0117, 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, § l0A(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

Andrew Doherty, Esq. SPR23/0117 Page 2 February 1, 2023 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. The Office’s October 31st Response In its October 31, 2022 response, an Office representative stated, “[t]ableau remains down so I can’t get you a better update about this until it’s back up. I’ve been following up with IT et. al., and will let you know what I find out about a time frame.” Current appeal In his appeal, Mr. Eledroos states, “[w]hile the agency has been occasionally responsive, notifying me of a failure to produce records due to some unspecified fault, they have still provided nothing months later.” Based on the Office’s response, is unclear if the Office possesses any records responsive to the request. 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). 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). Records must be provided without unreasonable delay. G. L. c. 66, § 10(a). The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Eledroos with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of the 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. Mr. Eledroos may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Nasser Eledroos