Shelby Lee v. Easthampton, City of (SPR 20231203)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2023 SPR23/1203 Barbara L. LaBombard City Clerk City of Easthampton 50 Payson Avenue Easthampton, MA 01027 Dear Ms. LaBombard: I have received the petition of Shelby Lee appealing the response of the City of Easthampton (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On May 12, 2023, Shelby Lee requested the following records: [1.] Any and all records including but not limited to the use, placement, physical locations, installation, and purchase of Automatic License Plate Readers and or ALPR technology. [2.] Any and all policy documents, including revisions to these policy documents, regarding Automatic License Plate Readers or ALPR technology. [3.] Any and all communications, including but not limited to emails and text messages, regarding Automatic License Plate Readers. [4.] Inventory information regarding Automatic License Plate Readers, including but not limited to quantity of devices, year purchased, specific device identifying numbers and information. The City provided responses on May 24, 2023. Unsatisfied with the City’s responses, Shelby Lee petitioned this office and this appeal, SPR23/1203, 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

Barbara L. LaBombard SPR23/1203 Page 2 June 21, 2023 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. 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 May 24th responses On May 24, 2023, the City provided Shelby Lee with records that were responsive to items two and four of the request. The City informed Shelby Lee that for records responsive to items one and three, they would need to submit their request to the City of Easthampton Information Technology Department. Shelby Lee responded and asked whether there were any additional records related to items two and four of the request in the City’s possession. The City stated that they “…are working on the request and will share available records.” Current appeal In the appeal, Shelby Lee states the following: I am appealing the attached public records request response from the City of Easthampton for the following reasons: [1] No part of the response seems to match the requested items. [2] The response remains incomplete. The records request was originally submitted on May 12, 2023. I have asked for updates and clarification of two documents provided . . . from the Easthampton Police Department and received no response from the Easthampton Police Department. The City responded on May 24, 2023 that they ‘are working on the request.’ I continued to receive no further response and asked again for an update on May 31, 2023. [3] Reasons given for the incompleteness and lack of response do not seem to be in compliance with public records laws.

Barbara L. LaBombard SPR23/1203 Page 3 June 21, 2023 Based on the City’s response, it is unclear if the City 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). Timeframe G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Shelby Lee’s request was submitted on May 12, 2023, I find the City has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the City must provide an estimated date as to when it intends to complete the search and provide the outstanding responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the City must provide responsive records on a rolling basis. Conclusion Accordingly, the City is ordered to provide Shelby Lee with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Shelby Lee may appeal the substantive nature of the City’s response within 90 calendar days. See 950 C.M.R. 32.08(1).

Barbara L. LaBombard SPR23/1203 Page 4 June 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Shelby Lee