Michael W. Berger v. Brockton, City of - Office of the City Clerk (SPR 20222649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 30, 2022 SPR22/2649 Troy B.G. Clarkson, MPA Chief Finance Office City of Brockton - City Hall 45 School Street Brockton, MA 02301 Dear Mr. Clarkson: I have received the petition of Michael W. Berger appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2022, Mr. Berger requested “any and all insurance policy documentation used to insure the [City’s] Police Department (Department), including its [v]ehicles between the period of January 1, 2017-October 17, 2022.” On November 2, 2022, the City forwarded an October 26th response, including the declaration pages and signature pages regarding the Department’s auto/vehicle insurance policies regarding the Department’s vehicles. Unsatisfied with the City’s November 2, 2022 production of only the declaration pages and signature pages pertaining to the Department’s motor vehicles, Mr. Berger petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Troy Clarkson SPR22/2649 Page 2 November 30, 2022 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. Possession of Additional Records On November 2, 2022, the forwarded an October 26th communication between Allison Cogliano and Tiffani Ciasullo, employees of the City. The City’s communication states, “[p]lease see attached. These are our declaration pages and would be responsive to the request [Mr. Berger] followed up on earlier re: our auto insurance policies.” In his November 11th petition, Mr. Berger asserts, “. . . [the City] only provided insurance policy documentation for the [Department’s] [motor] vehicles from January 1, 2017-October 17, 2022. [The City has] not provided the rest of the documentation covering the department as a whole.” Based on the City’s October 26th communication and Mr. Berger’s petition to the Supervisor, it remains unclear if the City possesses additional records responsive to Mr. Berger’s October 17th request. Specifically, the City must clarify whether it possesses records regarding insurance policies for the City’s Police Department (Department) as a whole. The City only provided insurance information regarding the Department’s motor vehicles. 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). The City must clarify whether it possesses additional records regarding Mr. Berger’s request. Conclusion Accordingly, the City is ordered to provide Mr. Berger with a response to his request in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Troy Clarkson SPR22/2649 Page 3 November 30, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Michael W. Berger