Susan L. Bach v. Suffolk County District Attorney's Office (SPR 20230740)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 27, 2023 SPR23/0740 Marc Phinney Records Access Officer Public Records Department Office of the Suffolk County District Attorney One Bulfinch Place Boston, MA 02114 Dear Mr. Phinney: I have received the petition of Susan Bach appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 7, 2023, Ms. Bach requested records related to a specific review conducted by the Office, “…including findings and the identity of the reviewers.” The Office provided a response on February 23, 2023. Unsatisfied with the Office’s response, Ms. Bach petitioned this office and this appeal, SPR23/0740, 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. 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

Marc Phinney SPR23/0740 Page 2 April 27, 2023 custodian must provide the responsive records. On February 23, 2023, the Office stated that “[i]f you could provide me with more detail about the case and the specific information you are looking for, we would be happy to investigate your request.” Ms. Bach provided the Office with further information regarding her request but received no subsequent response. Current appeal In her current appeal, Ms. Bach states the following: To date I have received no response to any of the 5 emails or to the 2 voice mail messages I left on Public Records Officer Phinney’s voice mail on March 15, 2023 and March 21, 2023. Based on the Office’s response, it 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); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent that the requested records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Office is ordered to provide Ms. Bach with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such 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. Ms. Bach may appeal the substantive nature of the Office’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Susan Bach