Maggie Mulvihill v. Office of the Comptroller (SPR 20232466)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2023 SPR23/2466 Darian Roberts, Esq. Records Access Officer Office of the Comptroller One Ashburton Place, 9th Floor Boston, Massachusetts 02108 Dear Attorney Roberts: I have received the petition of Maggie Mulvihill appealing the response of the Office of the Comptroller (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 15, 2023, Ms. Mulvihill requested: [T]he following from Jan. 1, 2020, to present: [1.] The names, descriptions and numbers of all accounts for prosecutors, including the Attorney General, which relate to state and federal forfeiture funds. [2.] All deposits or revenue for Massachusetts prosecutors, including the Attorney General, relating to state and federal forfeiture funds. [3.] All expenditures for Massachusetts prosecutors, including the Attorney General, relating to state and federal forfeiture funds. The office replied on October 13, 2023, providing responsive records. Unsatisfied with the Office’s response, Ms. Mulvihill appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Office provided a supplemental response to Ms. Mulvihill and this office on October 31, 2023. In an email to this office on the same day, Ms. Mulvihill objects to the Office’s October 31st response. 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 the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Darian Roberts, Esq. SPR23/2466 Page 2 November 1, 2023 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 custodian must provide the responsive records. Current Appeal In her October 31st email, Ms. Mulvihill contends that “the Comptroller’s office did not provide any spending records at all, despite the response which states it did so. The only attachment that was provided was account numbers.” Records in Existence 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). 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 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). Based on the information provided in Ms. Mulvihill’s appeal petition and October 31st email, it is unclear whether the Office possesses additional records responsive to her request. The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Ms. Mulvihill with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Darian Roberts, Esq. SPR23/2466 Page 3 November 1, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Maggie Mulvihill