David J. Farkas v. Pittsfield, City of - Police Department (SPR 20213240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 14, 2021 SPR21/3240 Kerri Striebel Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01202 Dear Kerri Striebel: I have received the petition of Attorney David Farkas 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 30, 2021, Attorney Farkas requested, “from June 1, 2019 to present, copies of any and all incident reports, police reports, witness statements, and 9/11 call logs” pertaining to an identified address. The Department provided a response on December 8, 2021. Unsatisfied with the Department’s response, Attorney Farkas petitioned this office and this appeal, SPR21/3240, 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 SPR21/3240 Page 2 December 14, 2021 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 December 8th Response On December 8, 2021, the Department indicated that the request is too vague, and requested that Attorney Farkas list the type of incident(s) and the dates in which they occurred. Current Appeal In his current appeal, Attorney Farkas stated, “on December 8, 2021, I emailed [the Department] asking how [the Department] wishes for me to be more specific…I did not receive a response to my email. I am submitting this appeal because the initial request was not too vague…” Based on Attorney Farkas’ appeal, in conjunction with the Department’s response, it is unclear if the Department possesses any records responsive to the 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). 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). Consequently, the Department must clarify whether records exist. Accordingly, the Department is ordered to provide Attorney Farkas with a response to the request in a manner consistent with the Public Records Law and its Access Regulations within 10 business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Farkas may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Farkas, Esq.