Mark Hochberg v. Suffolk County District Attorney's Office (SPR 20250781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 27, 2025 SPR25/0781 Caileigh Durkin Records Access Officer Suffolk County District Attorney’s Office One Bullfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Durkin: I have received the petition of Mark Hochberg, Esq., of Kirkland & Ellis, LLP, appealing the response of the Suffolk 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). February 10, 2025, Attorney Hochberg requested the trial exhibits used in Commonwealth v. Demond Chatman, Docket No. 0084CR10635. The Office provided a response on February 24, 2025. Unsatisfied with the response, Attorney Hochberg petitioned this office and this appeal, SPR25/0781, 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

Caileigh Durkin SPR25/0781 Page 2 March 27, 2025 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 February 24th Response In its February 24, 2025 response, the Office informed Attorney Hochberg that it possessed no records responsive to his request. The Office recommended that Attorney Hochberg contact the Suffolk County Superior Court for further assistance. Current Appeal In his March 20, 2025 petition to this office, Attorney Hochberg stated that the Suffolk County Superior Court had subsequently directed him to contact the Office to obtain the responsive records. Attorney Hochberg further stated, “… the Commonwealth must identify and produce the aforementioned trial exhibits.” In an email communication to this office on March 24, 2025, the Office confirmed that it had conducted a diligent search and did not possess the responsive records. The Office clarified that it was in possession of a case file relating to Commonwealth v. Chatman, but that case file did not contain the exhibits used at trial. The Office further stated, “[i]f the Clerk’s Office did supply this Office with the trial exhibits, we would need the specific date and time, as well as the employee to which they were distributed, to complete another search.” 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 the Office possesses no records responsive to Attorney Hochberg’s request and this office has no authority to compel the Office to create records, I will now consider this administrative appeal closed. If Attorney Hochberg 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).

Caileigh Durkin SPR25/0781 Page 3 March 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Mark Hochberg, Esq.