Craig Ptaszenski v. New Bedford, City of - Office of The City Solicitor (SPR 20240474)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 28, 2024 SPR24/0474 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 Appeals This request was the subject of previous appeals. See SPR23/3005 Determination of the Supervisor of Records (December 28, 2023) and SPR24/0123 Determination of the Supervisor of Records (January 29, 2024). In my January 29th determination, I ordered the City to clarify whether the responsive video is in the possession, custody, or control of the City. Subsequently, the City responded on February 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. SPR24/0474 Page 2 February 28, 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 appeal petition, Mr. Ptaszenski contends the following: [T]hey did record [the video] in the capacity of a government/elected official. While in chambers they were speaking with constituents, answering questions and were in control as elected officials. Their power or elected capacity does not stop because a cable access tv is not recording at the time. The City’s February 12th Response In its February 12, 2024 response, the City states that it “is not in possession of any responsive records.” In addition to the information provided in its previous January 12, 2024 and December 5, 2023 responses, the City also argues that “the then council president ... was not acting in the capacity of a government official at this time, as no official business was taking place. Thus the City is not in possession of any responsive records matching the specifications given in [Mr. Ptaszenski’s] November 17th request.” Please be 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). In this case, where the City has stated that the individual creating the video was not acting in the capacity of a government official, and the video in question was not created in furtherance of City business, and the City has confirmed that it does not possess responsive records, I find the City has met its burden in responding to this request. Conclusion Where the City confirmed that it does not possess records responsive to Mr. Ptaszenski’s request, I will now consider this administrative appeal closed. If Mr. Ptaszenski is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies).

Nicholas DeMarco, Esq. SPR24/0474 Page 3 February 28, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Craig Ptaszenski