Colman Herman v. Pittsfield, City of - Police Department (SPR 20240033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0033 Kerri Striebel Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Striebel: I have received the petition of Colman Herman appealing the response of the Pittsfield 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 December 28, 2023, Mr. Herman requested copies of “any and all documents related to the physical and mental requirements for the following: [1] Becoming a Pittsfield police officer; and [2] Pittsfield police officers on the job.” In a January 2, 2024 response, the Department informed Mr. Herman, “[p]lease note that Massachusetts Police Officer requirements are regulated by the [Commonwealth] of Massachusetts: refer to the following websites . . . Note: Peace Officer Standards and Training (POST) Commission in accordance with Chapter 6E of the Massachusetts General Laws, an individual must meet certain specified standards. We have also attached the current Rules and Regulations 14.0 and Police Officer Essential functions.” After reviewing the records provided through the website links, Mr. Herman petitioned the Supervisor of Records, and this appeal was opened. 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

Kerri Streibel SPR24/0033 Page 2 January 19, 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. Current Appeal In his petition, Mr. Herman states, “…Kerri Striebel of the [Department] responded to me with links that did not deal with [Request Number 2]…” In light of the above, it remains unclear if the Department possesses any records that may be responsive to Request Number 2. Specifically, the Department must clarify whether it possesses records regarding any physical or mental health requirements for the City’s police officers who are on the job. 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). 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). The Department is required to either provide a responsive record, if it exists, or provide Mr. Herman with a response clarifying that the Department has no records responsive to the request. Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman