Franklin Castano v. Essex County Sheriff's Department (SPR 20242415)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 5, 2024 SPR24/2415 Gretchen Grosky Director of Communications Essex County Sheriff’s Department 20 Manning Avenue, PO Box 807 Middleton, MA 01949 Dear Ms. Grosky: I have received the petition of Franklin Castano appealing the response of the Essex County Sheriff’s Department (Department) 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, Mr. Castano requested “… a complete copy of [his] visitor entry log book for all the persons that visit [him]… since April of 2014 through September of 2015.” Previous Appeal This request was the subject of a previous appeal. See SPR24/1786 Determination of the Supervisor of Records (June 25, 2024). The Department provided a response on June 21, 2024. Unsatisfied with the response, Mr. Castano petitioned this office and this appeal, SPR24/2415, 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 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

Gretchen Grosky SPR24/2415 Page 2 September 5, 2024 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 Department’s June 21st Response In its June 21, 2024 response, the Department provided two pages of records responsive to Mr. Castano’s request. Current appeal In his petition to this office, Mr. Castano alleged that the Department had failed to include visits by several of his attorneys in the visitation log book, and requested that the Department be ordered to provide logs of those visits. In an email dated August 28, 2024, the Department confirmed that all responsive records had been provided. In a second email dated September 3, 2024, the Department further clarified, “[t]here is no specific reason that [Mr. Castano’s] attorney visits, if they did in fact occur, would not appear on his visitor log. That said, the records are 10 years old, so the only potential explanation is that the Department’s software systems have undergone various updates and/or changes since then.” 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 Given that additional records do not exist and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Castano 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 judicial remedies).

Gretchen Grosky SPR24/2415 Page 3 September 5, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Franklin Castano Jordan E. Mitchell, Esq.