Ed Strout v. Pittsfield Police Department (SPR 20180061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Munay Supenrsor of Record January 30,2018 SPR181061 Ms. Kerri Striebel Records Clerk Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Ms. Striebel: I have received the petition of Ed Strout appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, 5 1OA; see also 950 C.M.R. 32.08(1). On December 20,2017, Mr. Strout requested "the incident log for 11115." Mr. Strout presumed that it would show "the time of the first call for assistance and any subsequent response by police officers and detectives" to to a certain individual. On December 28,2017 the Department responded that there would be a fee for records and that certain records would be exempt from disclosure under Exemption (a). 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, 5 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, 5 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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us1pre pre@sec.state.ma.us

Ms. Kerri Striebel Page 2 January 30,201 8 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lvnn, 377 Mass. 151, 54 (1979); Ottaway Newspapers. Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). Appeal Mr. Strout appealed the Department's response believing that the Department ignored the request for an "accident report" and the Department misinterpreted Exemption (a). The Department must respond to the issues presented by Mr. Strout in his appeal request. 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, 5 lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b) (iii). Conclusion Accordingly, the Department is ordered to produce responsive records in its possession in a manner consistent with this determination, the Public Record Law, and its Regulation within ten business days. A copy of 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. Mr. Strout may appeal the substantive nature of the revised response withn ninety days. See 950 C.M.R. 32.08(1). Sincerely, Li Rebecca S. Murray Supervisor of Records cc: Mr. Ed Strout