Eve Carson v. Essex County District Attorney's Office (SPR 20241835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 8, 2024 SPR24/1835 David O’Sullivan, Esq. Records Access Officer Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Sullivan: I have received the petition of Eve Carson appealing the response of the Essex 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 April 22, 2024, Ms. Carson requested: All records regarding the alleged crime scene, the Malafemmena, a 24 foot Christ Craft boat titled to [an identified individual] and operated by [an identified individual]. Records should include, but not limited to: [1] Insurance records with Liberty Mutual Insurance[;] [2] Police reports[;] [3] FBI reports and lab results on the Malafemmena[;] [4] Marine Surveyor . . . report[;] [5] Court records[;] [6] Witness statements regarding the boat[;] [7] Boat recovery reports[;] [8] Reward poster and reports for information regarding the boat[;] [9] Reports regarding developer . . . and Pier 7[;] [10] Reports of .357 magnum allegedly recovered under boat mooring[;] [11] Warrants submitted regarding the boat[;] [12] Briefs or court filings regarding the boat[;] [13] Reports or documents identifying marine equipment recovered either on the boat or identified as equipment used on the boat[;] [14] Report on the condition of the boat when it was raised on September 26, 1983[; and] [15] Reports of diving efforts to locate the boat[.] 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

David O’Sullivan, Esq. SPR24/1835 Page 2 July 8, 2024 Previous appeal This request was the subject of a previous appeal. See SPR24/1430 Determination of the Supervisor of Records (May 22, 2024). In my May 22nd determination, I ordered the Office to provide a response. The Office provided a response on June 13, 2024. Unsatisfied with the Office’s response, Ms. Carson petitioned this office and this appeal, SPR24/1835, 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. Att’y 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 custodian must provide the responsive records. The Office’s June 13th response In its June 13, 2024 response, the Office asserted, “[t]his Office has previously provided all records contained in the file that reference any boat, including the Malafemmena in 2017 and again in 2022 free of charge. This Office is not in possession of further responsive records.” Current Appeal In her appeal, Ms. Carson stated: Essex County provided numerous boat registrations for boats owned or operated by [an identified individual], the alleged offended [sic] responsible for [an identified individual]’s murder…. The boat in question, the alleged crime scene, is identified by registration number 683702. It should be noted that [the Office] was informed of an invalid boat registration submitted by [an identified individual]’s office in Suffolk County to the Federal District Court of RI for case

David O’Sullivan, Esq. SPR24/1835 Page 3 July 8, 2024 CR85-010-S that is not included in documents they provided. Court records and testimony in that case supported an invalid registration [the Office] cannot account for. … I want to emphasize that information requested regarding the boat is a significant component of the case that is under their stewardship…. The only documents [the Office] has provided to date on the boat are boat registrations. All of the information listed in the request is available…. It is unreasonable that the only information about the alleged crime scene is a boat registration. Other records I requested contradict the legitimacy of a case being “preserved” by [the Office]. Based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the Office, the Office confirmed that all responsive records have previously been provided to Ms. Carson. Please be advised that according to 950 C.M.R. 32.07(1)(a), “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” No Duty to Create Records 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). Conclusion Accordingly, where the Office has confirmed that it provided all responsive documents for this request and that it does not possess any additional documents responsive Ms. Carson’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Carson is unsatisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Eve Carson