Stanley J. Soltys v. Warren, Town of - Police Department (SPR 20170356)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2017 SPR17/356 Chief Bruce Spiewakowski Warren Police Department One Milton 0. Fountain Way; P.O. Box 606 Warren, MA 01083 Dear Chief Spiewakowski: I have received the petition of Stanley Soltys appealing the response of the Warren Police Department (Department) to a request for public records. G. L. c. 66 § lO(b) (2016 ed.); see also 950 C.M.R. 32.08(2)(2016 ed.). Specifically, Mr. Soltys has identified and itemized three (3) areas of concern in regards to the most recent response from the Department dated March 10, 201 7. Mr. Soltys contacted this office and this appeal was opened as a result. The original request was made prior to the effective date of the update to the Public Records Law. Consequently, the previous versions of the Law and related Regulations will apply. 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, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed.). "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 town 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, § lO(c) (2016 ed.); see also District 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, § lO(a) (2016 ed.); see also 950 C.M.R. 32.06(2) (2016 ed.) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian 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

Chief Bruce D. Spiewakowski SPR17/356 Page 2 March 23, 2017 of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on the Public Records Division staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. March 10th response In their most recent response dated March 10, 2017, the Department reaffirms their application of Exemption (f) to withhold video footage from a police cruiser in regards to a specific incident per the direction of the District Attorney. To reinforce their rationale, the Department states that "[T]he release of the video and report and its public dissemination prior to any judicial proceedings and prior to the arraignment of the defendant could jeopardize the Commonwealth's prosecution. If publicly circulated it would be also prejudicial to the Constitutional right to a fair trial of the defendant." Status of current appeal In a letter to this office dated March 20, 2017, Mr. Soltys indicates his intention to appeal the Department's latest response, and identifies three (3) core criteria for doing so. The Items are as follows: 1. "My appeal of February 10, 2017 was not for the camera video from police vehicle of crash on 11/19/16 as Chief Spiewakowski stated in his response. He did not answer the questions in the appeal." Mr. Soltys then notes his intention to request the video after the April arraignment. 2. "Requested in appeals dated December 16, 2016 and January 5, 2017 'who pays for the cost ofreplacing the severed utility pole #55 in incident on November 19, 2016."' Mr. Soltys notes that he has still not yet received a response. 3. "I requested in the appeal a copy of the District Attorney's directive not to release any information as states by Chief Spiewakowski in his response on December 28, 2016." Mr. Soltys states that he already received a response in which he informed Mr. Soltys that "there are no records." Each of Mr. Soltys' Items will be addressed below:

Chief Bruce D. Spiewakowski SPRl 7/356 Page 3 March 23, 2017 Whereas Mr. Soltys indicates his intention to seek the footage from the police vehicle as indicated in Item 1 at a later time and date, I will decline to opine on this Item. Subsequent to the intervention by a staff member with the Public Records Division, I learned that the Department plans to provide a supplemental response to Mr. Soltys' questions as identified in Item 2. It should, however, be noted that the inquiry was framed as a question rather than a request for records. A public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Nonetheless, the Department is willing to provide Mr. Soltys with a response. As indicated in a previous response addressed to Mr. Soltys, the Department already informed him that no responsive records exist with respect to Item 3. As such, I find that the Department satisfied their burden in already providing a response to this inquiry. Conclusion Whereas the Department has previously asserted no responsive records exist with respect to Item 3 and indicated they would provide a response to Mr. Soltys' question about the utility pole as identified in Item 2, I will consider this administrative appeal closed with the proviso that the Department provide said response within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, 12wwA_~- Rebecca S. Murray Supervisor of Records cc: Stanley Soltys