M. P. Feitelberg v. Somerset, Town of - Police Department (SPR 20231853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 24, 2023 SPR23/1853 Melissa Reis Records Access Officer Somerset Police Department 465 County Street Somerset, MA 02726 Dear Ms. Reis: I have received the petition of M. P. Feitelberg appealing the response of the Somerset Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 6, 2023, M. P. Feitelberg requested: [1] An original, complete and intact audio recording of the citizen’s call received at 21:22 hours (09:22 P.M.) on Friday, June 30th, with a copy of that evening’s call log; [2] Original, complete and intact audio-video recordings of any cameras in squad cars driven by Officers Almeida and Wilkinson, respectively; [3] Original, complete and intact audio-video recordings of body-cameras worn by Officers Almeida and Wilkinson, respectively; [4] Original, complete and intact versions of any document or account by Somerset Police Department personnel, or by Town agents or contracted advisors, as are related to or had resulted from these events. May include but are not limited to: handwritten or shorthand call or meeting notes, speech or radio transcriptions, hand-keyed or narrated notes, database entries and emails, smart-device records and texts, and other forms of handwritten, verbal, photographic, cartographic, audio-video or other records. On July 7, 2023, the Department responded. Unsatisfied with the Department’s response, Ms. Feitelberg petitioned this office and this appeal, SPR23/1853, 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 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

Melissa Reis SPR23/1853 Page 2 August 24, 2023 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. Att’y 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 July 7th Response In its July 7, 2023 response, the Department states: Please find attached two of the items requested in your records request: the call log, and the reporting party’s call recording. Some points regarding the other items: - The police report has not been completed and approved by a supervisor. Once these steps are completed, the report can be released. - The police radio recordings will not be available. As has been publicly documented for some time, our radio system is not in proper working order. As such, recordings have not been possible during much of the time we have been having trouble. - The body camera footage does take extra time to process, as the interaction was quite lengthy. Once any redaction is completed according to MA General Law and our policies and procedures, those files will be made available to you. In an email dated August 11, 2023 to this office, the Department states, “[a]s of this date, the department has furnished Ms. Feitelberg with all requested documents, paper, electronic, audio and video (body cam footage provided via a secure internet link found in our e-mail response) which are in our possession.”

Melissa Reis SPR23/1853 Page 3 August 24, 2023 No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Conclusion Whereas the Department has confirmed that it has produced all the requested documents, and does not possess any additional records responsive to M. P. Feitelberg’s request, I will now consider this administrative appeal closed. If M. P. Feitelberg is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, Manza Arthur Supervisor of Records cc: M. P. Feitelberg