Kristin Kotewicz v. Department of State Police (SPR 20243186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2024 SPR24/3186 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Kristin Kotewicz appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2024, Ms. Kotewicz requested 15 categories of records related to “… an investigation initiated in September 2024 referred to by a report compiled by the National Center for Missing and Exploited Children … reference #198028650[.]” The Department provided responses on November 12, 2024 and November 21, 2024. Unsatisfied with the responses, Ms. Kotewicz petitioned this office and this appeal, SPR24/3186, 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. 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. 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

Allison Mondello SPR24/3186 Page 2 December 6, 2024 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 Town’s November 12th and November 24th Responses In its November 12, 2024 response, the Department informed Ms. Kotewicz that it had no responsive records in its custody. In its November 24, 2024 response, the Department provided Ms. Kotewicz with a copy of certain Standard Operating Procedures, responsive to the first part of her request. The Department confirmed its earlier statement that it did not possess records responsive to the remainder of Ms. Kotewicz’s request. Current Appeal In her November 25, 2024 petition to this office, Ms. Kotewicz objected to the Department’s statement that it possessed no additional records responsive to her request. Ms. Kotewicz claimed that the Department had indicated to her in an October 2024 phone conversation that there was an ongoing investigation related to her request. In an email to this office on November 27, 2024, the Department stated that it had conducted a diligent search of its records and spoken with the commander of its Cyber Crime Unit. The Department further stated that it had not conducted an investigation of the kind Ms. Kotewicz describes. The Department claimed that the commander of the Cyber Crime Unit had conveyed this information to Ms. Kotewicz in a conversation on November 20, 2024. 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 all responsive records have been provided and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Ms. Kotewicz 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).

Allison Mondello SPR24/3186 Page 3 December 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kristin Kotewicz Alexandra Orn