Patrick J. Mason v. Berkshire District Attorney's Office (SPR 20232938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2938 Joseph A. Pieropan, Esq. Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Patrick J. Mason, of The Mason Group, Inc., appealing the response of the Berkshire 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 November 17, 2023, Mr. Mason requested, “…records with regards to the motor vehicle death of [an identified individual] which occurred in the Town of Hinsdale on May 20, 2023, specifically, [t]he Massachusetts State Police CARS unit report of incident, and [r]eports obtained from the Dalton and Hinsdale Police Departments.” On November 17, 2023, Attorney Pieropan provided an initial response to Mr. Mason, stating, “I anticipate responding to your request within 10 business days of today’s date.” On December 5th, Mr. Mason petitioned the Supervisor of Records, and this appeal was opened. In his petition Mr. Mason states, “[a]s of this date I have yet to receive a response. While this appeal was pending, the Office provided supplemental responses on December 6, and December 8, 2023. 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) (written response must “identify 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

Joseph A. Pieropan, Esq. SPR23/2938 Page 2 December 18, 2023 any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 December 6, 2023 and December 8, 2023 Responses Subsequent to the opening of this appeal, on December 6, 2023, Attorney Pieropan provided Mr. Mason with a response, stating, “. . . [a]ttached to this email is a PDF file Buzzella Official Brady Findings that includes information pertinent to your request. At this time I am searching for additional records responsive to your request. Please consider submitting a similar request to the Massachusetts State Police Records Center, the Dalton Police Department, and the Hinsdale Police Department.” On December 8, 2023, Attorney Pieropan provided another response accompanied by an eighteen page report from the Massachusetts Department of State Police. Additionally, Attorney Pieropan informed Mr. Mason that the Office continues to search for additional records that may be responsive to Mr. Mason’s request. Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 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). Whereas the Office has indicated that it is still conducting a search for additional records, the Office should keep Mr. Mason informed as to a timeframe in which the Office expects to complete the search for additional records. I advise the parties to continue to communicate regarding Mr. Mason’s request. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide Mr. Mason with a response to the request in compliance with this order, the Public Records Law and its Regulations within 10 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. Mr. Mason may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Joseph A. Pieropan, Esq. SPR23/2938 Page 3 December 18, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Patrick J. Mason