Amanda DiCrescenzo v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20230621)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 14, 2023 SPR23/0621 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Amanda DiCrescenzo appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2023, Ms. DiCrescenzo requested, “... the Oath of Office and bond information for 2023 for [a named] Judge of the Salem MA Probate and Family Court.” The Division responded on March 31, 2023. Unsatisfied with the response, Ms. DiCrescenzo petitioned this office and SPR23/0621, 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. 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

Valerie Connolly SPR23/0621 Page 2 April 14, 2023 The Department’s March 31st response In its March 31, 2023 response, the Division asserted Exemption (o) to redact the home address of the named Justice of the Probate Court. The Division further asserted, “[t]here are no records responsive regarding “...bond information for Judge Mary Rudolph Black of the Salem MA Probate and Family Court.” Current appeal In her appeal, Ms. DiCrescenzo stated, “I am requesting Judge Mary Rudolph Blacks of the Salem MA Probate and Family courts bond information.” No Duty to Create Records Under the Public Records Law, the Division is not required 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 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 Accordingly, where the Division has confirmed that it does not possess responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Ms. DiCrescenzo is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Amanda DiCrescenzo