Yisbert Lara v. Cape & Islands District Attorney's Office (SPR 20230377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0377 E. Russell Eonas, Esq. Second Assistant District Attorney Cape and Islands District Attorney’s Office 3231 Main Street, Box 455 Barnstable, MA 02630 Dear Attorney Eonas: I have received the petition of Yisbert Lara appealing the response of the Cape and Islands 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 Janaury18, 2023, Mr. Lara requested “a complete unredacted copy of the complaint that was filed on [a named attorney] for violation of the Massachusetts Rules of Professional Conduct.” The Office responded on January 26, 2023, providing two responsive records. Unsatisfied with the Office’s response, Mr. Lara 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. 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 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

E. Russell Eonas, Esq. SPR23/0377 Page 2 March 10, 2023 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Lara contends that the Office “failed to provide [him] with the specific requested document” and that the Office “did not cite any exception or reason to den[y] [him] access to the requested public records. Nor denied that the specific requested documents are not in their possession, custody, and control.” The Office’s January 26th Response In its January 26, 2023 response, the Office provides a “[l]etter from [a named individual] to the Office of Bar Counsel received by the Office of Bar Counsel October 20, 2014,” and a “[t]ranscript of October 31, 2014 proceeding.” 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). In a telephone conversation with this office on March 6, 2023, the Office confirmed that it does not possess additional records responsive to the request, and in an email of the same date, the office confirmed that it “has provided all responsive material to Mr. Lara.” Conclusion Where the Office has confirmed that it does not possess additional records responsive to Mr. Lara’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Yisbert Lara