Craig Ptaszenski v. New Bedford, City of - Office of The City Solicitor (SPR 20233005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 28, 2023 SPR23/3005 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street New Bedford, MA 02740 Dear Attorney DeMarco: I have received the petition of Craig Ptaszenski appealing the response of the City of New Bedford (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 16, 2023, Mr. Ptaszenski requested the following: On Tuesday 11/14/23 at the Appointments briefing meeting a video was recorded via cell phone by [the] City council President ... of a disturbance in the city hall chambers. [Mr. Ptaszenski is] requesting via Mass Law, this video be sent to [him] through this foia request. The City responded on December 5, 2023, stating that it does not possess responsive records. Unsatisfied with the City’s response, Mr. Ptaszenski appealed, and this case 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. 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 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

Nicholas DeMarco, Esq. SPR23/3005 Page 2 December 28, 2023 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 City’s December 5th Response In its December 5, 2023 response, the City states that “after conducting a search of its departmental databases, the City has verified that it is not in possession of records matching the specifications given in [Mr. Ptaszenski’s] November 17th request.” In his appeal petition, Mr. Ptaszenski contends that “witnesses saw her video recording [i]n the council chambers.” Possession, Custody, or Control The City is advised that 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). Further, 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). Additionally, public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on the City’s December 5th response, and the information provided in Mr. Ptaszenski’s appeal petition, it is unclear whether the City possesses records responsive to Mr. Ptaszenski’s request. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Ptaszenski with a response to his 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 the response to this office at pre@sec.state.ma.us.

Nicholas DeMarco, Esq. SPR23/3005 Page 3 December 28, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Craig Ptaszenski