Buffy D. Lord v. Pittsfield, City of - Police Department (SPR 20210547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 19, 2021 SPR21/0547 Ms. Kerri Striebel Records Access Officer City of Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Buffy D. Lord, Esq. of Donovan O’Connor & Dodig, LLP appealing the response of the Pittsfield Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 8, 2020, Attorney Lord requested copies of any and all documents that relate or refer to: “1. Any and all records of calls or reports made to the Pittsfield Police in which [an identified person] was the calling party; 2. Any and all records of calls or reports made to the Pittsfield Police in which [an identified person] was a named witness or participant; 3. Any and all records of any arrests of [an identified person] by the Pittsfield Police; 4. Any and all incident reports in which [an identified person] was a named suspect; 5. Any and all incident reports in which [an identified person] was a named victim; 6. Any and all incident reports in which [an identified person] was a named witness; 7. Any and all police reports in which [an identified person] was a named victim; and 8. Any and all police reports in which [an identified person] was a named witness.” The Department responded on February 11, 2021, indicating, “[y]our request is too vague, please list the type of incident(s) and the dates in which they occurred. Please note: Current/Ongoing court case information may be available by contacting the presiding court/DA’s Office directly. Also, Criminal history records can be requested via the Department of Criminal Justice Information Services…” As a result of the Department’s February 11th response, Attorney Lord petitioned the Supervisor of Records (Supervisor) on March 4, 2021, and this appeal was opened. 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

Ms. Kerri Striebel SPR21/0547 Page 2 March 19, 2021 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 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, § 10(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…”); 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). 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. In Attorney Lord’s March 4th petition, she indicates that she and her law firm have attempted to clarify the request, but to no avail. Attorney Lord asserts, “[w]e are aware that the [Department] have both responded to calls at [the identified address], and that [the identified person] has had an extensive (and recent) involvement with the [Department]. Although, the requestor concedes that there are multiple spellings of [the identified person’s] name, as noted previously, she is well known to the [Department] and the requests have been clear.” Records in existence; Superior knowledge of the records In light of the issues raised in Attorney Lord’s appeal regarding the existence of responsive records, I find it is unclear whether the Department possesses records responsive to her 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, § 10(a)(ii). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5); see also G. L. c. 66, § 10(a)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Consequently, I find the Department must clarify whether it possesses responsive records. Conclusion Accordingly, the Department is ordered to provide Attorney Lord with a response to the

Ms. Kerri Striebel SPR21/0547 Page 3 March 19, 2021 request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Buffy D. Lord, Esq., Donovan O’Connor & Dodig, LLP