Eoin Higgins v. Pittsfield, City of - Police Department (SPR 20212433)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2021 SPR21/2433 Kerri Striebel Records Access Officer Police Department City of Pittsfield 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Eoin Higgins 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 July 26, 2021, Mr. Higgins requested: [A]ll emails and attachments, from January 1, 2019 to January 1, 2020, from and to members of the Pittsfield Police Department concerning Amazon Ring. These records include, but are not limited to, emails and attachments from [two named officers] having to do with the Amazon Ring giveaway in June 2019, as well as any Amazon Ring partnership, official or otherwise, with the department. Previous appeals This request was the subject of previous appeals. See SPR21/2118 Supervisor of Records Determination (September 1, 2021) and SPR21/2240 Supervisor of Records Determination (September 15, 2021). In my September 15th determination, I encouraged Mr. Higgins and the Department to continue to communicate in order to facilitate providing records more efficiently and affordably. Subsequently, the Department responded to Mr. Higgins on September 22, 2021. Unsatisfied with the Department’s response, Mr. Higgins appealed, and this case 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 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 SPR21/2433 Page 2 October 5, 2021 form or characteristics, made or received by any officer or employee of any agency or municipality 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s August 31st and September 22nd Responses In its September 22, 2021 response, as in its August 31, 2021 response, the Department notes that “a global email search producing thousands of emails not meeting the exact criteria of the request will need to be reviewed entirely.” The Department again recommends that the scope of the request be modified by “[n]ot including solicitations, advertisements, etc.” In his appeal petition, Mr. Higgins states that he is “appealing this response, the reasons given are not sufficient to deny the request. If there are really ‘thousands’ of emails meeting this description, let them prove it.” In its response, the Department has not denied Mr. Higgins any access to records, but is seeking clarification regarding the scope of his request. Please be advised that it is valid for the custodian of records to 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 or municipality to produce records sought more efficiently and affordably.” See G. L. c. 66, § 10(b)(vii). Given the expansiveness of his request, Mr. Higgins is encouraged to provide the Department with the needed clarification regarding the volume of emails referenced in the Department’s response. G. L. c. 66, § 10(a)(i) (the request must reasonably describe the public records sought). 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). 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), (b)(ii). In this case, the Department has used its knowledge of the records in order to provide an estimate of the number of emails responsive to Mr. Higgins’ request.

Kerri Striebel SPR21/2433 Page 3 October 5, 2021 Based on the foregoing, it is unclear what the basis of Mr. Higgins’ appeal is. Mr. Higgins is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(l)(f). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Higgins is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eoin Higgins