Caleb Musa v. University of Massachusetts Amherst - Police Department (SPR 20243081)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2024 SPR24/3081 Ian P. Cyr Deputy Chief University of Massachusetts Police Department 585 East Pleasant Street Amherst, MA 01003 Dear Deputy Chief Cyr: I have received the petition of Caleb Musa appealing the response of the University of Massachusetts Police Department (Department/UMPD) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 13, 2024, Mr. Musa requested body worn camera footage related to Amherst Police Department Report #23-161-OF. On November 13, 2024, the Department provided a response. Unsatisfied with the response, Mr. Musa petitioned this office and this appeal, SPR24/3081, 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. Att’y 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. 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

Ian P. Cyr SPR24/3081 Page 2 November 26, 2024 The Department’s November 13th Response On November 13, 2024, the Department provided Mr. Musa with the audio recording of a dispatch call related to the subject incident, and informed him that “[t]he UMPD does not use body worn cameras.” Current Appeal In his November 14, 2024 petition to this office, Mr. Musa stated that “… the body camera footage is of paramount importance to ensure transparency and accuracy.” Mr. Musa further claimed that the Department employs body worn cameras, and provided documentation in support of that claim. In a November 15, 2024 email to this office, the Department confirmed that there were no records responsive to Mr. Musa’s request. The Department further stated: With respect to video capability of UMPD, Mr. Musa requested body-worn camera footage. As stated to him before, the UMPD does not use body worn cameras, which remains the case. He provided an audio file which appears to be a recording of a motor vehicle stop conducted by a UMPD officer … In the audio I heard the officer identify himself (this is one of our officers) and state that the stop is audio and video recorded. The UMPD does utilize in-car camera and audio systems which are activated by the emergency lights or the individual officer. The officer is required to notify a person that the encounter is audio/video recorded, if the system is activated. The officer wears an external microphone on their uniform which looks like a pager, and is sometimes believed to be a body worn camera. This is not the case, it only records audio … To do my due diligence I have reviewed the in-car video of the officers that responded to assist APD during [the subject incident]. Neither officers in-car video was used during their assist of the APD, and as such we have no further responsive records. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

Ian P. Cyr SPR24/3081 Page 3 November 26, 2024 Conclusion Given that the requested records do not exist and this office has no authority to compel the Department to create records, I will now consider this administrative appeal closed. If Mr. Musa 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). Sincerely, Manza Arthur Supervisor of Records cc: Caleb Musa