Alex Domberg v. Pittsfield, City of - Police Department (SPR 20233057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 4, 2024 SPR23/3057 Abigail Hunt Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Alex Domberg, of Taconic Law, appealing the response of the Pittsfield Police Department (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2023, Mr. Domberg requested the following records: [1.] Any and all body camera footage whatsoever, specifically related to the Department conducting a welfare check, community caretaking, or any other Investigation, related to [an identified individual], on or about 7/3/2023, at [an identified location]. [2.] ... any and all Department policies, any and all Department regulations, any and all Department procedures, any and all Department directives, and any and all Department guidelines, or procedural documents, of any kind. On November 28, 2023, the Department provided a response. Unsatisfied with the Department’s response, Mr. Domberg petitioned this office and this appeal, SPR23/3057, 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

Abigail Hunt SPR23/3057 Page 2 January 4, 2024 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 November 28th Response In its November 28, 2023 response, The Department stated, “[o]ur policies are linked on our website here ... I will get started into the body camera footage for you and work to get that to you ASAP once we have received the money order.” Based on a conversation between a representative of Taconic Law and a staff member at the Division of Public Records, this office was advised that the requested fee has been paid to obtain the requested body camera footage. G. L. c. 66, § 10(a) provides that: A records access officer appointed pursuant to section 6A, or a designee, shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record . . . or any segregable portion of a public record, not later than 10 business days following the receipt of the request, provided that . . . (i) the request reasonably describes the public record sought; (ii) the public record is within the possession, custody or control of the agency or municipality that the records access officer serves; and (iii) the records access officer receives payment of a reasonable fee as set forth in subsection (d) G. L. c. 66, § 10(a)(iii) (emphasis added). Where it appears Mr. Domberg has paid the fee to receive the requested records, it is unclear why the Department has not provided the responsive records. 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).

Abigail Hunt SPR23/3057 Page 3 January 4, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Domberg 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 the response to this office at pre@sec.state.ma.us. Mr. Domberg may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Alex Domberg