Matthew A. Slater v. Pittsfield, City of - Police Department (SPR 20211303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 8, 2021 SPR21/1303 Kerri Striebel Records Bureau Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Attorney Matthew A. Slater, of Tentindo, Kendall, Canniff & Keefe, 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 April 12, 2021, Attorney Slater’s firm requested the accident report for a motor vehicle accident which occurred on 11/20/2019. The Department responded on April 12, 2021. Unsatisfied with the response, Attorney Slater appealed and SPR21/1303 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, § 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(d)(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). 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 SPR21/1303 Page 2 June 8, 2021 Status of the requestor; reason for the request Please note that 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 pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of - - - - Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Slater’s interest in obtaining the records shall have no bearing on the public nature of the record. Where Attorney Slater seeks the record for a pending litigation matter, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Slater may wish to consider another means of seeking to obtain any existing responsive records. Current appeal In his May 25th appeal, Attorney Slater advised, “[w]e requested an unredacted copy of the attached police report in order to identify witnesses to the accident as part of litigation and an insurance claim. The vehicle involved in the accident is owned by UPS ... Given that UPS is a party to a litigation filed by the other operator…there is no harm or prejudice for Pittsfield to produce the unredacted copy of the police report.” Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew A. Slater, Esquire