Dusty Christensen v. Hampden County District Attorney's Office (SPR 20252970)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2025 SPR25/2970 Sean P. Buxton, Esq. Assistant District Attorney Records Access Officer Hampden District Attorney’s Office 1500 Main Street Springfield, MA 01115 Dear Attorney Buxton: I have received the petition of Dusty Christensen, of The Shoestring, appealing the response of the Hampden District Attorney’s Office (Office/HDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 30, 2025, Mr. Christensen requested “[a]ny document tracking the docket numbers of any indictments that the Hampden DA’s Office has brought, from Jan.1, 2022 to present, that have resulted from wiretap evidence.” I understand the Office assigned tracking number P000415-073025 to this request. Previous Appeal This request was the subject of a previous appeal. See SPR25/2970 Determination of the Supervisor of Records (September 12, 2025). In my September 12th determination, I ordered the Office to identify any responsive records, and to clarify its claims under Exemptions (e) and (f) of the Public Records Law for withholding the records. Subsequently, the Office responded on September 25, 2025. Unsatisfied with the Office’s response, Mr. Christensen petitioned this office, and this appeal, SPR25/2970, 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

Sean P. Buxton, Esq. SPR25/2970 Page 2 October 23, 2025 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 September 25th Response In its September 25, 2025 response, the Office explains the following: [T]he HDAO does not possess any responsive records that can properly be characterized as a “document tracking the docket numbers of any indictments that the Hampden DA’s Office has brought, from Jan.1, 2022 to present, that have resulted from wiretap evidence.” No such document exists, and as stated in the HDAO’s initial response, the public records law does not require an agency to create a record in response to a request. The Office goes on to explain that it is withholding one potentially responsive record pursuant to Exemption (e) of the Public Records Law. See G. L. c. 4, § 7(26)(e). Current Appeal In his appeal petition, Mr. Christensen argues the following: [I]t’s still unclear whether those records would fall under the category of “notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit.” If the document is used to organize pending cases as part of that employee’s duties within the Hampden District Attorney’s Office, it is my contention that it should be subject to disclosure under the public records law. Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e).

Sean P. Buxton, Esq. SPR25/2970 Page 3 October 23, 2025 The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e). The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file.” In its response, under Exemption (e), the Office explains the following: The only responsive record . . . is a document maintained in the personal files of a member of the HDAO. The purpose of the document is to organize the pending cases to which that member of the HDAO is assigned. The document has never been shared with another member of the HDAO, including myself. The document is not kept for the purpose of “tracking the docket numbers of indictments” resulting from wiretap evidence, and the document is not used in the creation of the “annual report of wiretap interceptions pursuant to [G. L. c. 272, § 99R]” referenced in [the] request. Accordingly, the responsive record fits squarely within exemption (e). The document is work-related, but entirely personal to the employee in question. The purpose of the document is to assist the employee in organizing and completing work-related activities. The document has never been shared with another employee or with the HDAO. Additionally, the document is not kept in a government file, nor even in a working file that is transitory in nature. For all of the aforementioned reasons, the HDAO still denies your public record in its entirety pursuant to G. L. c. 4, § 7(26)(e). Based on the information provided in the Office’s September 25th response, where the responsive record is personal to the employee, and was not shared with others, and was not part of the governmental file, I find that the Office has met its burden to withhold the record under Exemption (e). See G. L. c. 4, § 7(26)(e).

Sean P. Buxton, Esq. SPR25/2970 Page 4 October 23, 2025 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Christensen 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: Dusty Christensen