Ryan Smith v. Pittsfield, City of - Police Department (SPR 20241703)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 21, 2024 SPR24/1703 Abigail Hunt Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Ryan D. Smith, Esq., of Taconic Law, appealing the response of the Pittsfield Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 50 C.M.R. 32.08(1). On October 17, 2023, Attorney Smith requested the following documents: [1] Any and all body camera footage whatsoever, specifically related to the Pittsfield Police Department conducting a welfare check, community caretaking, or any other investigation, related to [an identified individual] on or about 7/3/2023, at . . . McLaughlin Place, Pittsfield MA 01201[;] [2] With regard to welfare checks, community caretaking, or any similar type of investigation: any and all Police Department policies … Prior Appeal The requested records were the subject of a prior appeal. See SPR23/3057 Determination of the Supervisor of Records (January 4, 2024). The Department responded on June 6, 2024. Unsatisfied with the Department’s response, Attorney Smith petitioned this office and this appeal, SPR24/1703, 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, 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 SPR24/1703 Page 2 June 21, 2024 § 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 custodian must provide the responsive records. The Department’s June 6th response Item 1 In its June 6, 2024 response, regarding Item 1, the Department stated that “no documents currently exist.” The Department explained, “[w]hen your request was received, the records officer accessed the video on the AXON website on November 30th in order to be able to provide you with a redacted copy of the video. The Police department’s retention policy at the time was 6 months for non crime related videos and unfortunately the video was automatically deleted on January 6, 2024. The Police Department checked with Axon to see if there is a way to reproduce a copy of the video and were told that once deleted, the video cannot be retrieved.” The Department also stated to Attorney Smith, “[t]hough you indicated that you paid the $10.00 fee, the City has no record of having received or processed the fee.” Item 2 With regard to Item 2, the Department provided the requested documents. Current appeal In his appeal, Attorney Smith states, “... the Department is now claiming for the first time that the amount allegedly due for the body camera video was $10, as opposed to the $5 amount the Records Access Officer ... explicitly told me by phone, which I immediately provided that same day by way of a money order delivered in-hand to the Pittsfield Police Department. The responsive body camera video was destroyed on January 6, 2024, during the time that the Department was refusing to respond or comply with the law.” Records Management Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also

Abigail Hunt SPR24/1703 Page 3 June 21, 2024 Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Department’s June 6th response raises concerns regarding records management practices by the Department. Please be aware safeguards must be instituted by the Department to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. With regard to the fee dispute, I encourage Attorney Smith and the Department to communicate directly to resolve the matter. Conclusion Given that the requested “body camera footage” no longer exist, and Attorney Smith has received the records responsive to Item 2 of the request, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Ryan D. Smith, Esq.