James P. Ryan v. Essex County District Attorney's Office (SPR 20243124)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3124 Kristen W. Jiang, Esq. Assistant District Attorney Appeals Division Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970 Dear Attorney Jiang: I have received the petition of James P. Ryan 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 October 11, 2024, Mr. Ryan requested, “...all Essex County Records including Lynn District Court regarding this Obstruction of Justice. This includes [identified] Attorneys’ involvement in this Witness Tampering and Perjury. Please also include documents relating to [an identified] Attorney’s 2000 hours of Investigation into the City of Everett.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/3004 Determination of the Supervisor of Records (November 15, 2024). In my November 15th determination, I learned that the Office provided Mr. Ryan with a response on November 14, 2024. Unsatisfied with the Office’s response, Mr. Ryan petitioned this office and SPR24/3124, 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). 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

Kristen W. Jiang, Esq. SPR24/3124 Page 2 December 3, 2024 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 custodian must provide the responsive records. The Office’s November 14th Response In its November 14, 2024 response, the Office asserted, “[t]he above-referenced request is entirely duplicative of those made by Mr. Ryan in 2021 and 2022 which have been duly satisfied.” The Office further asserted, “[o]n January 20, 2022, after receiving multiple emails from Mr. Ryan and consulting with employees of this Office who had met with and reviewed documents submitted by him, [the Office] agreed to produce all of the records in this Office’s possession relating to all matters that Mr. Ryan had brought to the attention of employees of this Office, regardless of whether those materials were responsive to his specific requests in his numerous emails to the Office. Per his preference, I mailed 474 pages of materials to Mr. Ryan’s Saugus address, waiving the cost of the same ... Mr. Ryan continued to request additional documentation that this Office does not possess, and Mr. Ryan was informed that this Office has no other records relative to the matters he continues to reference in his emails. In light of the above, it is this Office’s position that it has fully complied with its obligations under G.L. c. 66, § 10 relative to Mr. Ryan’s requests.” No Duty to Create Records Under the Public Records Law, the Office is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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). The Public Records Regulation, 950 C.M.R. 32.07, provides that “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.” See 950 C.M.R. 32.07 (emphasis added). In an email communication to this office on December 3, 2024, the Office confirmed that all responsive records were provided and no additional records exist.

Kristen W. Jiang, Esq. SPR24/3124 Page 3 December 3, 2024 Conclusion Accordingly, where the Office has previously provided Mr. Ryan with responsive records in its possession, has no additional responsive records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Ryan is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: James P. Ryan