Howard B. Brown v. Attorney General's Office (SPR 20240896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 5, 2024 SPR24/0896 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Howard B. Brown appealing the response of the Office of the Attorney General (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 12, 2024, Mr. Brown requested: [1.] Investigation results, reports, any documents you obtained regarding my said MGL c 258 § 4 claim. [2.] Copy of SBCC property inventory of property removed from my cell 29 of Unit L1, of SBCC, circa May 13, 2023. [3.] Name of officer (staff member) that signed said property inventory of property removed from my cell 29 of Unit L1, of SBCC, circa May 13, 2023. Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0746 Determination of the Supervisor of Records (March 15, 2024). In my March 15th determination, I learned that the Office provided Mr. Brown with a response dated March 4, 2024. Unsatisfied with the response, Mr. Jones petitioned this office and this appeal, SPR24/0896, 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, § 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

Hanne Rush, Esq. SPR24/0896 Page 2 April 5, 2024 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). 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 March 4th Response In its March 4, 2024 response, the Office asserted that, “...the AGO found no records responsive to [the] request.” The Office advised Mr. Brown that he may “wish to contact the Department of Correction which may be the proper custodian in this instance.” No Duty to Create Records Under the Public Records Law, the Office 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 Office has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Jones 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: Howard B. Jones