Craig Ptaszenski v. New Bedford, City of - Office of The City Solicitor (SPR 20240123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 29, 2024 SPR23/0123 Nicholas DeMarco, Esq. Associate City Solicitor City of New Bedford 133 William Street, Room 203 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. Previous Appeal This request was the subject of a previous appeal. See SPR23/3005 Determination of the Supervisor of Records (December 28, 2023). In my December 28th determination, I found that it was unclear whether the City possessed records responsive to the request. Subsequently, the City responded on January 12, 2024. Unsatisfied with the City’s response, Mr. Ptaszenski further 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). 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. SPR24/0123 Page 2 January 29, 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 City’s January 12th Response In its January 12, 2024 response, the City states that it “is not in possession of any responsive records,” and argues the following: At the time of the incident on November 14, 2023, which [Mr. Ptaszenski] allude[s] to in [his] original request, the City Council was between meetings, meaning that no official business was taking place. It was at this time that the video which [he] seek[s] was recorded on a councilor’s private cell phone. For these reasons, the video in question is not a public record, as it does not meet the definition provided under G.L. c. 4, § 7(26). In his appeal petition, Mr. Ptaszenski contends the following: [I]t was in the chambers and at that time she was acting in the capacity of a government official. Whether a personal phone or a business phone, when acting in a government capacity, all information is public Information and able to be FOIA requested. At that time there was a quorum in the city hall, which means you also are in a government role. 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). Based on the City’s January 12th response, it remains unclear whether the City possesses responsive records. Specifically, where the video in question was created by a city councilor, apparently inside city hall, and the subject of the video is uncertain, it remains unclear whether the video is in the possession, custody, or control of the City. The City must clarify these matters. Conclusion Accordingly, the City is ordered to provide Mr. Ptaszenski with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Nicholas DeMarco, Esq. SPR24/0123 Page 3 January 29, 2024 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: Craig Ptaszenski