Elise Lambert v. Pittsfield, City of - Police Department (SPR 20240838)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 2, 2024 SPR24/0838 Abigail Hunt Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Elise Lambert, of the Committee for Public Counsel Services (CPCS), 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 February 27, 2024, Ms. Lambert requested “[a]ll internal affairs records relating to [an identified individual].” The Department responded on February 27, 2024. Unsatisfied with the Department’s response, Ms. Lambert petitioned this office and this appeal, SPR24/0838, 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(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 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

Abigail Hunt SPR24/0838 Page 2 April 2, 2024 custodian must provide the responsive records. The Department’s February 27th response In its February 27, 2024 response, the Department asserted “…we would ask that you confirm that there are no pending criminal matters in which CPCS represents a defendant where [the identified individual] is a witness or a potential witness. . . . [I]n open cases involving criminal defendants, the information requested must be obtained through a Rule 14 and Rule 17 motion, not through a public records request.” Current Appeal A representative of CPCS responded to the Department’s inquiry, stating “I do not know if any CPCS staff attorney has a case where [the identified individual] is a witness or potential witness, but I am not personally aware of any.…[Further,] a criminal defendant is entitled to no more and no less than any other member of the public. As such, whether a CPCS attorney has a pending criminal case involving [the identified individual] is irrelevant to the public records analysis.” Based on Ms. Lambert’s claims, in conjunction with the Department’s response, it is unclear if the Department possesses any records responsive to her 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 Department must clarify whether the requested records exist. Conclusion Accordingly, the Department is ordered to provide Ms. Lambert with a response to her 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. Ms. Lambert may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Elise Lambert