Daniel O'Grady v. Plymouth County District Attorney's Office (SPR 20230988)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 24, 2023 SPR23/0988 Karen Palumbo, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Daniel O'Grady appealing the response of the Plymouth 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 May 10, 2023, Mr. O’Grady asked the following “[t]rying to find out if the fax your office sent for a discovery compliance request attached was received back From Bridgewater PD AND Middleboro PD or was it JUST Middleboro PD providing all the info for Bridgewater and Middleboro.” On May 11, 2023, the Office responded and indicated that they had no responsive records. Unsatisfied with the Office’s response, Mr. O’Grady petitioned this office and this appeal, SPR23/0988, 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. 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

Karen Palumbo, Esq. SPR23/0988 Page 2 May 24, 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 May 11th response In its May 11, 2023 response, the Office stated, “[t]he Plymouth County MA District Attorney's Office has reviewed its files and has determined there are no responsive documents to your request. There is no notation in the file regarding who we received police reports from.” In a conversation between a Public Records Division staff attorney and an Office representative, the Office confirmed that it has no records responsive to the request. No Duty to Answer Questions, Conduct Research Mr. O’Grady is 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). 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). Where Mr. O’Grady submitted to the Office two questions, I find the Office has no duty under the Public Records Law to answer such questions. Sincerely, Manza Arthur Supervisor of Records cc: Daniel O'Grady