Jason Poulos v. Middlesex District Attorney's Office (SPR 20241505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2024 SPR24/1505 Daniel DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Jason Poulos appealing the response of the Middlesex 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 April 26, 2024, Mr. Poulos requested a copy of an “[e]mail chain between [an identified individual] of the Sherborn Police department and [a second identified individual] dated between October 23, 2019, to November 4, 2019, including all attachments contained within these correspondences.” The Office responded on May 9, 2024. Unsatisfied with the response, Mr. Poulos petitioned this office and this appeal, SPR24/1505, 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. 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

Daniel DeBlander, Esq. SPR24/1505 Page 2 June 3, 2024 Current Appeal In his appeal petition, Mr. Poulos asserts that the “existence of this email chain is confirmed in Middlesex Superior Court Docket Number 2181CV01004.” The Office’s May 9th Response In its May 9, 2024 response, the Office states it conducted a search of the identified individuals’ emails and did not find any responsive records. The Office states it “does not have any records in its possession, custody or control that are responsive to [the] request. It is possible that if a responsive email chain does exist that it was lost in the email archiving process when [the identified individual] left this Office.” The Office further advises Mr. Poulos “to contact the Records Access Officer for the Sherborn Police Department.” Records Management In a telephone conversation with this office on May 17, 2024, a representative for the Office further confirmed that they do not have records responsive to the request. The Office stated they did not know what happened to the records or if they ever existed, but that they could confirm the records did not exist. Further, the Office indicated that Mr. Poulos should direct his request to the Records Access Officer for the Sherborn Police Department. Mr. Poulos’ appeal raises questions regarding the records management of the Office. Please be aware, safeguards must be instituted by the Office to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 8, 13, 15. For further guidance in records management and retention, the Office may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Conclusion Given that the requested records do not exist, and this office has no authority to compel the Office to create records, I will consider this administrative appeal closed. Mr. Poulos may submit a new request to the Sherborn Police Department for the records he is seeking, and if he is unsatisfied with the response, he may appeal that response within ninety (90) days. See 950 C.M.R. 32.08(1). If Mr. Poulos is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of

Daniel DeBlander, Esq. SPR24/1505 Page 3 June 3, 2024 judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Jason Poulos