Mitchell Kosht v. Pittsfield, City of - Police Department (SPR 20242857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 29, 2024 SPR24/2857 Abigail Hunt Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Attorney Mitchell Kosht 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 September 10, 2024, Attorney Kosht requested “[a]ll investigatory reports, summary memoranda, witness statements, or other internal documents related to the sustained internal affairs complaint(s) against [an identified individual] for an incident occurring on or about September 30, 2011 as listed in the Peace Officer Standards and Trainings Database of Sustained Allegations and Disciplinary Actions by Agency…” The Department responded on October 16, 2024. Unsatisfied with the Department’s response, Attorney Kosht petitioned this office and this appeal, SPR24/2857, 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 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

Abagail Hunt SPR24/2857 Page 2 October 29, 2024 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 October 16th response In its October 16, 2024 response, the Department asserted, “I am wrapping up and reviewing the requested documents and will have them to you by the end of day tomorrow, if not end of day today before I leave.” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Kosht submitted his request on September 10, 2024, and the Department has not provided the responsive records, nor cited an exemption for withholding records, I find the Department has not met its burden in responding to the request in accordance with G. L c. 66, § 10(b). Consequently, the Department must provide an estimated date as to when it intends to complete the review and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis. Conclusion Accordingly, the Department is ordered to provide Attorney Kosht with a response to his 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

Abagail Hunt SPR24/2857 Page 3 October 29, 2024 pre@sec.state.ma.us. Attorney Kosht 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: Mitchell Kosht, Esq.