Igor Greenwald v. Pittsfield, City of - Police Department (SPR 20190328)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 28, 2019 SPR19/0328 Kerri Striebel City of Pittsfield - Police Department 3 9 Allen Street Pittsfield, MA O1 201 Dear Ms. Striebel: I have received the petition oflgor Greenwald appealing the response of the City of Pittsfield-Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on September 19, 2018, Mr. Striebel requested "[o]fficers' reports, witness interview summaries and concluding reports from all internal affairs investigations completed by the Pittsfield Police Department since Jan. 1 2017, along with any other public records relevant to these investigations." Previous appeal This request was the subject of a previous appeal. See SPRl 8/2005 Determination of the Supervisor of Records (December 21, 2018). I closed SPR18/2005 by ordering the Department to review Mr. Greenwald's request and provide responsive records in accordance with the Public Records Law, its Access Regulations and the order within ten business days. Subsequently, the Department provided Mr. Greenwald with a fee estimate for provision of the responsive records. Unsatisfied with the Department's response, Mr. Greenwald petitioned this office and this appeal, SPRl 9/0328, 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, § lOA(d); 950 C.M.R. 3.2.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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 Striebel SPR19/0328 Page2 February 28, 2019 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Compliance with the requirements ofp roviding a response; fees Despite the Department's response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. See id. Further, it is unclear how the Department is permitted to charge a fee. See 950 C.M.R. 32.06(2)(c). Pursuant ro the Public Records Law, a records access officer's (RAO) written response must be provided within ten business days, and must also comply with the criteria listed in the statute. See G. L. c. 66, § 1O (b ). A RAO is prohibited from charging a fee for provision of public records unless the RAO responded to the requester within ten business days. See 950 C.M.R. 32.06(2)(c). In this instance, Mr. Greenwald's request is dated September 18, 2018 and, to the best of my knowledge, the Department's RAO provided an initial response to Mr. Greenwald on November 27, 2018. Consequently, the Department is not permitted to charge Mr. Greenwald a fee for production of records responsive to this request. The Department may provide another response explaining how it has complied with the requirements of providing a response permitting the Department to charge a fee; or, in the alternative, the Department must waive the fee and provide Mr. Greenwald with responsive records without further delay. Order Accordingly, the Department is ordered to provide Mr. Greenwald with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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, ~ a y ~ Supervisor of Records cc: Igor Greenwald