Todd Wallack v. Norfolk County District Attorney's Office (SPR 20242114)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2024 SPR24/2114 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Norfolk County District Attorney’s Office (Office/NDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2024, Mr. Wallack requested “Indictments or criminal complaints issued since 1/1/2019 of any defendants who have been accused of raping more than one victim. Alternatively, [the Office] could provide copies of the news releases describing the charges, docket numbers of the cases, or the names of the defendants – whichever is easier for your office.” The Office responded on July 17, 2024. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/2114, 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, § l0A(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 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

Brandon P. Hunt, Esq. SPR24/2114 Page 2 August 8, 2024 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 July 17th response In its July 17, 2024 response, the Office stated the following: The NDAO reasonably reads your request as seeking indictments or criminal complaints of defendants who are charged with raping more than one victim. The NDAO does not maintain its records in such a fashion that it can locate a document or record responsive to your request. 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 and the public record law does not require an agency to create records, answer questions, or conduct additional research in response to a request. G.L. c. 4, § 7 (26) (defining “public records” as materials which have already been “made or received” by a public entity); G.L. c. 66, § 6A(d); G.L. c. 66, § 10(a)(ii). In response to your alternative request, a diligent search yielded no responsive records related to your request for press releases. Current Appeal In his appeal, Mr. Wallack states: The office claimed “a diligent search yielded no responsive records,” but provided no evidence it actually searched for the requested records. I would be satisfied if the records access officer would simply ask the office’s assistant district attorneys and staff if they are aware of any responsive documents and (if so) could help locate them or provide the relevant docket numbers, so that I can retrieve the records myself. I understand any such search may be incomplete, but would appreciate any good faith effort to locate the responsive documents. It is worth noting that other district attorney offices were able to provide responsive documents to an identical request, including district attorneys in Hampden County, Northwestern District and Middle District. Based on Mr. Wallack’s appeal, it is unclear if the Office possesses any records responsive to the request. 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

Brandon P. Hunt, Esq. SPR24/2114 Page 3 August 8, 2024 the request. See G. L. c. 66, § 10(a)(ii). 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). The Office must clarify whether it possesses records responsive to the request. 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 10 business days. A copy of the 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 (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack