Colman Herman v. Holyoke, City of - City Clerk (SPR 20240291)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0291 Brenna Murphy McGee, MMC City Clerk Records Access Officer City of Holyoke 536 Dwight Street, Room #2 Holyoke, MA 01040 Dear Ms. McGee: I have received the petition of Colman Herman appealing the response of the City of Holyoke (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 9, 2024, Mr. Herman requested “... copies of any and all documents related to the physical and mental requirements for Holyoke police officers who are on the job.” The City responded on January 31, 2024. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR24/0291, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). If there are any fees associated with a response a written, good faith estimate must be 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

Brenna Murphy McGee SPR24/0291 Page 2 February 14, 2024 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 31st response In its January 31, 2024 response, the City stated, “[p]lease resubmit your request on the Holyoke Police Departments website... This allows the Holyoke Police Department to communicate with you directly through their software.” Current appeal In his appeal, Mr. Herman stated, I do not wish to use their software. Will you forward my request to the police department?” Pursuant to 950 CMR 32.06 (1) (d), a records access officer shall not require a particular form be used by requesters, but may make forms available for requesters. The Public Access Regulation states as follows: written requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. electronically; or 4. by facsimile, if custodian has facsimile access. 950 C.M.R. 32.06 (1) (c). Where Mr. Herman has made a records request to the City electronically in compliance with 950 CMR 32.06 (1) (c) and 950 CMR 32.06 (1) (d), it is unclear if the City possesses any records responsive to his request. 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). However, 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). Consequently, the City must clarify whether records exist. Conclusion Accordingly, the City 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 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. Herman may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Brenna Murphy McGee SPR24/0291 Page 3 February 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman