Patrick J. Mason v. Pittsfield, City of - Police Department (SPR 20243122)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2024 SPR24/3122 Abigail Hunt Records Access Officer Pittsfield Police Department 39 Allen Street Pittsfield, MA 01201 Dear Ms. Hunt: I have received the petition of Patrick Mason 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 October 28, 2024, Mr. Mason requested the following: [1] McDonald’s Video Surveillance property number [identified file number][;] [2] U-Haul Video Surveillance property number [identified file number][;] [3] Flash Drive (photo) property number [identified file number]. Previous Appeal This request was the subject of a previous appeal. See SPR24/3080 Determination of the Supervisor of Records (November 14, 2024). In my November 14th determination, I closed SPR24/3080 in light of the Department providing Mr. Mason with a response on November 14, 2024. Unsatisfied with the Department’s response, Mr. Mason petitioned this office, and this appeal, SPR24/3122, 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

Abigail Hunt SPR24/3122 Page 2 December 3, 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. The Department’s November 14th Response In its November 14, 2024 response, the Department states that “any records pertaining to 24-3501-OF are part of the Discovery process and must be requested through the Berkshire County District Attorney’s Office or the court that is handling the case.” Possession, Custody, or Control of Records The Department is 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). Based on the Department’s response, it is unclear whether the Department possesses records responsive to the request. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Based on the information provided in the Department’s response, it is unclear whether the responsive records are the subject of pending litigation. Specifically, the Department has not

Abigail Hunt SPR24/3122 Page 3 December 3, 2024 provided a docket number or other identifying information referring to the possible litigation mentioned in its response. See 950 C.M.R. 32.08(2)(b). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Mason with a response to the 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. Sincerely, Manza Arthur Supervisor of Records cc: Patrick Mason