Jonathan Gerhardson v. Hampden County District Attorney's Office (SPR 20241728)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1728 Lee Baker, Esq. Assistant District Attorney Hampden District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Baker: I have received the petition of Jonathan Gerhardson appealing the response of the Hampden 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 June 6, 2024, Mr. Gerhardson requested “a copy of a subpoena and related preclusion to disclose order sent to Chicopee Electric Light Department on or around Oct 10, 2023.” The Office responded on June 10, 2024, indicating it does not possess responsive records. Unsatisfied with the Office’s response, Mr. Gerhardson appealed, and this case 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. 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 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

Lee Baker, Esq. SPR24/1728 Page 2 June 25, 2024 custodian must provide the responsive records. The Office’s June 10th Response In its June 10, 2024 response, the Office states that it “has no records responsive to [Mr. Gerhardson’s] request.” Current Appeal In his appeal petition, Mr. Gerhardson contends the following: The grounds for my appeal are an email sent to [the Supervisor of Public Records] office on May 9 from Chicopee Electric Light Department, which acknowledges receipt of a subpoena on “10/2/23 from a Massachusetts District Attorney and ordering non-disclosure under 18 USC sec. 2703(c) and 2705(1)(B).” I acknowledge that I got the dates mixed up in my request to the DA’s office. However, Oct 2 is on or around Oct 10 in my book... Records in Existence Please be 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). Additionally, 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). In a telephone conversation with this office on June 17, 2024, a representative of the Office confirmed that the Office does not possess records responsive to Mr. Gerhardson’s request. Conclusion Where the Office confirmed that it does not possess records responsive to Mr. Gerhardson’s request, I will now consider this administrative appeal closed.

Lee Baker, Esq. SPR24/1728 Page 3 June 25, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Gerhardson