Nancy Cohen v. Pittsfield, City of - Police Department (SPR 20222238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2022 SPR22/2238 Kerri Striebel Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Nancy Cohen, of New England Public Media, 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 8, 2022, Ms. Cohen requested “[a] [l]ist of officers with Crisis Intervention Training & Date of Training.” The Department responded on July 11, 2022. Unsatisfied with the Department’s response, Ms. Cohen petitioned this office and this appeal, SPR22/2238, 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 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. 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. 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 SPR22/2238 Page 2 October 17, 2022 The Department’s July 11th response In its July 11, 2022 response, the Department asserted that, “…the requested record does not exist at this time and we are not required to create a public record to fulfill a request.” Current appeal In her appeal, Ms. Cohen states, “[i]n an interview I did with Pittsfield Police Chief … on June 16, 2022 he gave the total number of officers who had received Crisis Intervention Training and said, ‘[w]e have crisis intervention trained officers who went through CIT with Berkshire County NAMI several years ago. [NAMI –National Alliance on Mental Illness].” Ms. Cohen further asserted, “[o]n August 9, 2022 Pittsfield Police [Lieutenant] … responded via email. He wrote ‘11 current Pittsfield Police officers have received CIT training.’ …Based on this, I believe that it’s possible that the department knows which officers received the training and when …” In light of the above claim, 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). As a result, I find that the Department did not satisfy its burden in responding to this records request. Conclusion Accordingly, the Department is ordered to provide Ms. Cohen with a response to the request 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, Manza Arthur Supervisor of Records cc: Nancy Cohen