Geraldine Houde v. Norfolk County District Attorney's Office (SPR 20230178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2023 SPR23/0178 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Geraldine Houde appealing the response of the Norfolk 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 January 16, 2023, Ms. Houde requested “an estimated total of the number of dedicated hours spent investigating [a specific] homicide, by the MSP detectives assigned to the case from January 1, 2021 to January 1, 2023.” The Office responded on January 24, 2023, stating that it does not possess responsive records. Unsatisfied with the Office’s response, Ms. Houde appealed, and this case was opened as a result. Status of the Requestor In her appeal petition, Ms. Houde indicates her relation to the victim in the request. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). 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 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

Brandon P. Hunt, Esq. SPR23/0178 Page 2 February 10, 2023 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. Current Appeal In her appeal petition, Ms. Houde contends that “it is in the best interests of the public, the residents of Norfolk County and most importantly the families of unresolved homicides in Norfolk County to know how much time is spent investigating unsolved murders.” The Office’s January 24th Response In its January 24, 2023 response, the Office explains that it “does not maintain its records in such a fashion that it possesses a document or record reflecting the total number of hours spent investigating the above-mentioned case.” No Duty to Answer Questions, Conduct Research, Create Documents 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, 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). However, 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). In a telephone conversation with this office on February 6, 2023, an attorney for the Office confirmed that the Office does not possess records that would indicate the amount of time spent on a specific case. Conclusion Where the Office has confirmed that it does not possess records responsive to Ms. Houde’s request, and has not duty to create records responsive to the request, I will now consider this administrative appeal closed.

Brandon P. Hunt, Esq. SPR23/0178 Page 3 February 10, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Geraldine Houde