Todd Wallack v. Plymouth County District Attorney's Office (SPR 20241765)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 28, 2024 SPR24/1765 Karen Palumbo, Esq. Assistant District Attorney Records Access Officer Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Plymouth County 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 May 17, 2024, Mr. Wallack requested, “... copies of a 2018 records request and the response to that request. (See images below.)” The image has an identification number 2019023573 with request received 8/9/2018 and response provided 08/16/2018 and record is related to victims of sexual assault. The Office responded on May 17, 2024 and May 20, 2024. Unsatisfied with the responses, Mr. Wallack petitioned this office and this appeal, SPR24/1765, 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(d)(iv) (written response must “identify 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 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

Karen Palumbo, Esq. SPR24/1765 Page 2 June 28, 2024 also Dist. Att’y 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 May 17th and May 20th Responses In its May 17, 2024 response, the Office stated, “[y]ou are seeking copies of a public record request from 2018, but provided a 2019 reference number. Is that the correct number. Also, this request was made/provided before we used the GOVQA app, which tracks requests and allows us to access old requests. We need more information in order to attempt to find this request. Who made the request and exactly what documents was the requester seeking.” In its May 20, 2024 response, the Office stated, “[t]his public records request does not reasonably describe the records sought as required by G.L. c. 66, sec. 10(a)(i); See also Friedman v. Division of Administrative Law Appeals, 103 Mass. App. Ct. 806 (2024). Also, we are not required to search another agencies database in order to find records that you are requesting. Public Records include all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics that are in our custody and control. Records maintained by the Secretary of State’s Office are not in our custody and control. In addition, pursuant to the Massachusetts Statewide Records Retention Schedules, Quick Guide Schedule 06-18, sec, B02- 01 we are required to retain public record request data for three years. Where this request was made in 2018, we no longer have the request and response within our custody or control.” The Office also referred to Exemption (a) of the Public Records Law and stated, “[y]our request also involves ‘records related to victims of sexual assault’. Reports of rape, sexual assault, or domestic violence are exempt from disclosure. See G.L. c. 4 §7(26)(a); G.L. c 41 § 97D.” Current appeal In his appeal, Mr. Wallack states, “I suspect the reference number is one assigned by the Secretary of State’s office. I found the request listed in the Secretary of State’s database of public records requests, which is a compilation of the data it received from the Plymouth DAO and other state agencies. This is the only information listed in the Secretary of State’s database. Could you search the request by the date the request was received (8/9/2018) and then see which ones involved ‘records related to victims of sexual assault’? Alternatively, could Plymouth check the log of requests it sent to the Secretary of State’s office for calendar year 2018?” Mr. Wallack further stated in his appeal, “I requested a specific record listed on the log of state public records requests, maintained by the Supervisor of Records. The Plymouth DA’s

Karen Palumbo, Esq. SPR24/1765 Page 3 June 28, 2024 office refused to search for the document, saying the ID number the Supervisor of Records used does not match the ID number the Plymouth DA’s office used for that request.” 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 Office’s response, it is unclear whether the Office possesses the records responsive to Mr. Wallack’s request. If the Office no longer possesses the records, the Office must demonstrate that it permissibly destroyed the records in compliance with the Statewide Records Retention Schedule. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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. Wallack may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack