Amanda Burke v. Pittsfield, City of - City Solicitor's Office (SPR 20231483)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2023 SPR23/1483 Michele M. Benjamin Records Access Officer City of Pittsfield 70 Allen Street Pittsfield, MA 01201 Dear Ms. Benjamin: I have received the petition of Amanda C. Burke, of the Berkshire Eagle, appealing the response of the City of Pittsfield (City) to a request for public records. On May 10, 2023, Ms. Burke requested the following records: [1.] Any settlement documents the city has in its possession for the following case: … v. City of Pittsfield et al, filed in United States District Court for the District of Massachusetts. [2.] Any documents pertaining to settlements in any other case naming a current or former Pittsfield officer or officers settled any time between 2010 and the present. [3.] Invoices for legal fees for … v. City of Pittsfield et al, filed in United States District Court for the District of Massachusetts. [4.] Any invoices for legal fees for settlements in any other case against a current or former Pittsfield officer or officers settled any time between 2010 and the present. The City responded on June 26, 2023. Unsatisfied with the response, Ms. Burke petitioned this office and this appeal, SPR23/1483, 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). 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

Michele M. Benjamin SPR23/1483 Page 2 July 11, 2023 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. The City’s May 26th Response In its May 26, 2023 response, the City asserted, “[w]e couldn’t find any documents for your request.” Current appeal In her appeal, Ms. Burke asserted, “I have received information that a settlement payment of $125,000 was made to [named person], the victim in the above-named lawsuit. I have reason to believe that documents pertaining to that settlement in fact exist within the city’s care and control that the city is withholding.” Based on Ms. Burke’s claims, in conjunction with the City’s response, it is unclear if the City possesses any records responsive to her 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). However, 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 City must clarify whether responsive records exist. Conclusion Accordingly, the City is ordered to provide Ms. Burke with a response to the request, provided 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. Ms. Burke may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Amanda C. Burke