Clarence Risher v. Worcester County Sheriff's Office (SPR 20251806)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2025 SPR25/1806 Kevin M. Gould, Esq. General Counsel Worcester County Sheriff’s Office 5 Paul X. Tivnan Drive West Boylston, MA 01583 Dear Attorney Gould: I have received the petition of Clarence Risher appealing the response of the Worcester County Sheriff’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 June 23, 2025, Mr. Risher requested the following information in the custody of the Office or Worcester County Sheriff Civil Process Division, Inc. (WCSCPDI), for any eviction requested, scheduled, or performed since January 1, 2020: [1] The court that issued the execution[;] [2] The date the execution was issued by the court[;] [3] The docket number of the case in which the execution was issued[;] [4] The date the execution was delivered to your office to schedule[;] [5] The date the execution was scheduled for[;] [6] Any dates on which the execution was rescheduled[;] [7] Any dates to which the execution was rescheduled[;] [8] Whether the execution took place[;] [9] The date the execution took place[;] [10] The name and/or badge number of the officer who performed the execution[;] [11] Any notes, observations, statements, or reports created by your agent(s) who participated in scheduling or performing the execution, including but not limited to officers and office staff. The Office responded on June 24, 2025. Unsatisfied with the response, Mr. Risher petitioned this office and this appeal, SPR25/1806, was opened as a result. Subsequent to the opening of this appeal, the Office provided a supplemental response on June 25, 2025. 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

Kevin M. Gould, Esq. SPR25/1806 Page 2 July 1, 2025 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. 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 June 24th Response In its June 24, 2025 response, the Office informed Mr. Risher that it possessed no responsive records. The Office further stated that WCSCPDI is a non-profit entity and not subject to the Public Records Law, but “… even if [WCSCPDI] was a public agency and was subject to the public records statute, they do not retain copies of the records you are seeking.” Current Appeal In his June 24, 2025 petition to this office, Mr. Risher characterized the Office’s response as inaccurate. Mr. Risher contended that WCSCPDI was a public entity subject to the Public Records Law, and that both WCSCPDI and the Office should possess responsive records. Mr. Risher provided additional support for this argument on June 25, 27, 28, and 29, 2025. In its June 25, 2025 response, the Office restated its position that WCSCPDI is not a public entity subject to the Public Records Law, and referred to a previous determination of this office finding that WCSCPDI was not obligated to disclose records in response to a public records request. See SPR14/0120 Determination of the Supervisor of Records (May 6, 2014). In a telephone conversation with this office on June 25, 2025, the Office confirmed that neither the Office nor WCSCPDI possess records responsive to the request. The Office further clarified that the requested information is typically maintained by the Massachusetts state courts.

Kevin M. Gould, Esq. SPR25/1806 Page 3 July 1, 2025 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 Mr. Risher’s request and this office has no authority to compel the Office to create records, I will now consider this administrative appeal closed. If Mr. Risher 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). Sincerely, Manza Arthur Supervisor of Records cc: Clarence Risher