Craig Ptaszenski v. New Bedford, City of - Office of The City Solicitor (SPR 20240238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2024 SPR24/0238 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 22, 2023, Mr. Ptaszenski requested the following: On Tuesday 11/14/23 at the Appointments briefing meeting photos and or videos were taken via cell phone by city councilor at large . . . of a disturbance in the city hall chambers. [Mr. Ptaszenski is] requesting via Mass Law, all photos and video on [a named individual’s] phone from the disturbance and throughout the remainder of the appointment and briefings meeting... Previous Appeal This request was the subject of a previous appeal. See SPR23/3124 Determination of the Supervisor of Records (January 10, 2024). In my January 10th determination, I found that it was unclear whether the City possessed records responsive to the request. Subsequently, the City responded on January 25, 2024. Unsatisfied with the City’s response, Mr. Ptaszenski petitioned this office, and this appeal, SPR24/0238, 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. SPR24/0238 Page 2 February 6, 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. 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 City’s January 25th Response In its January 25, 2024 response, the City stated, “[t]he City Council was between meetings at the time that the November 14, 2023 incident that [Mr. Ptaszenki] reference[s] took place. During this time, the councilor took a video of the event using said councilor’s private cellular phone. At the time, the councilor was not acting within her official capacity because the City Council was not in session. It is for these reasons that the video which you seek is not a public record; it was not made by the political subdivision because the political subdivision (i.e. City Council) was not conducting business at the time. In sum, the City is not in possession of the record that [Mr. Ptaszenki] seek[s].” In his appeal petition, Mr. Ptaszenski asserts, “[b]etween meetings as the city council president, she is still in fact acting in the capacity as a government official. As far as personal phone, that does not matter…” 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 25th response and Mr. Ptaszenki’s appeal, 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 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.

Nicholas DeMarco, Esq. SPR24/0238 Page 3 February 6, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Craig Ptaszenski