Barry M. Ryan v. Pittsfield, City of - Police Department (SPR 20180405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 9, 2018 SPR18/405 Kerri Streibel Records Bureau City of Pittsfield - Police Department 70 Allen Street Pittsfield, MA 01201 Dear Ms. Streibel: I have received the petition of Barry M. Ryan, of Doherty, Wallace, Pillsbury and Murphy, P.C., appealing the response of the City of Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Ryan requested a copy of records related to his client. On January 18, 2018, the Department provided Attorney Ryan with records, including a redacted narrative for Detective Kim C. Bertelli-Hunt. However, the Department did not claim any exemptions in the Public Records Law to withhold the content in the report. Unsatisfied with the Department's response, Attorney Ryan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Attorney Ryan indicated that in February 2018, he provided the Department with a release form drafted by Attorney Ryan and signed by his client, entitled, "waiver of privacy rights relative to personal and medical file information and privacy rights and authorization for disclosure." The release relates only to the dissemination of personal, medical or private information regarding his client. Attorney Ryan asks this office to intervene and requests that the Department provide an un-redacted version of Detective Bertelli-Hunt's narrative report. Status of the requestor The reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 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

Kerri Streibel SPR18/405 Page2 April 9, 2018 (1976). Accordingly, Attorney Ryan's purpose in making the request has no bearing on the public status of any existing responsive records. The discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this many not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means."); 950 C.M.R. 32.08(1 )(a ). As such, Attorney Ryan may wish to consider another means of seeking to obtain the existing responsive record(s). 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, § 1O A( 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, § 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(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). In an April 5, 2018 conversation, City Solicitor Richard Dohoney informed a Public Records Division attorney that he had contacted Attorney Ryan by telephone; however, he did not provide a written response to explain the redaction of the narrative report. It is my understanding that this office advised you and Attorney Dohoney that Attorney Ryan must receive a written response that identifies which exemption in the Public Records Law allows the Department to withhold the redacted information in the report, and specifically explain why the exemption applies. Duty of specificity Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852,857 (1995); Flatley, 419 Mass. at 511.

Kerri Streibel SPR18/405 Page 3 April 9, 2018 I find that the Department did not meet its burden of claiming an exemption and explaining how the redaction of information within the content of the record is exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Order Given that the Department did not provide an exemption or the specific reasons for the redactions, the Department did not provide a compliant response pursuant to G. L. c. 66, § lO(b)(iv). Accordingly, the Department is hereby ordered to provide Attorney Ryan with a response, provided in a manner consistent with this order, the Public Records Law and its Regulations 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, Rebecca S. Murray Supervisor of Records cc: Barry M. Ryan, Esq. Richard Dohoney, Esq., City Solicitor