Elise Lambert v. Pittsfield, City of - Police Department (SPR 20251179)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2025 SPR25/1179 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 multiple requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). SPR24/0064 On December 6, 2023, Ms. Lambert requested the following records: [1.] A digital copy of the spreadsheet your police department sent to the POST Commission, likely sent between November 2021 and June of 2022, providing the information requested by the POST Commission for its “database listing complaints against police officers” planned for May of 2022; [2.] Any and all letter from the Pittsfield Police Department to the District Attorney’s Office regarding [an identified individual]. SPR24/0186 On January 4, 2024, Ms. Lambert requested “[a]ll internal affairs records relating to [an identified individual].” SPR24/0360 On January 19, 2024, Ms. Lambert requested “[a]ny and all internal affairs records regarding [an identified individual].” 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 SPR25/1179 Page 2 May 13, 2025 SPR24/0838 On February 27, 2024, Ms. Lambert requested “[a]ll internal affairs records relating to [an identified individual].” Previous Appeals These requests were the subjects of previous appeals. See SPR24/0064 Determination of the Supervisor of Records (January 19, 2024); SPR24/0186 Determination of the Supervisor of Records (February 1, 2024); SPR24/0360 Determination of the Supervisor of Records (February 9, 2024) and SPR24/0838 Determination of the Supervisor of Records (April 2, 2024). In my January 19th, February 1st, February 9th, and April 2nd determinations, I ordered the Department to provide Ms. Lambert with responses to her requests. Subsequently, the Department provided numerous responses from June 6, 2024 through April 7, 2025. Unsatisfied with the Department’s responses, Ms. Lambert petitioned this office, and this appeal, SPR25/1179, 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 custodian must provide the responsive records. The Department’s Responses In multiple responses from June 6, 2024 through April 7, 2025, the Department provided numerous records in redacted form. Burden of Specificity In her appeal petition, Ms. Lambert explains the following:

Abigail Hunt SPR25/1179 Page 3 May 13, 2025 [W]e are appealing the redactions that [the Department] made to the records . . . produced, not only in the documents related to Jennifer Brueckmann, but also in the documents . . . produced on June 6 and on July 15 related to Andrew Couture and the documents produced on August 9 regarding Robert Horne. For all document productions, [the Department] did not identify specific exemptions upon which the redactions are based, nor did [the Department] state why any exemption applies to the redacted portions of the responsive records, as required by G. L. c. 66, § 10(b)(iv). In this case, the Department’s responses did not contain the specificity required in a denial of access to public records. The Department is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on Department’s responses, it is unclear which exemptions the Department is citing in order to redact the responsive 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify this. Possession, Custody, or Control The Department is further 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, 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). In her appeal petition, Ms. Lambert reviews here extensive correspondence with the Department, and provides the following list of records that she claims have not been provided: 1. Any and all letters from the Pittsfield Police Department to the District Attorney’s Office regarding Andrew Couture. 2. Internal affairs reports regarding Robert Horne that have not already been produced, or confirmation that the three documents we have received are all the records that exist. 3. Internal affairs reports regarding Jennifer Brueckmann, specifically: - The internal affairs investigation into a citizen’s complaint from 5/5/2010, which lead to a sustained allegation of neglect of duty - 2010-IA-017

Abigail Hunt SPR25/1179 Page 4 May 13, 2025 - The internal affairs investigation into a citizen’s complaint from 10/14/2014, which lead to a sustained allegation of improper firearm usage / storage - Care and Security of Firearms - 2015-IA-008 - The internal affairs investigation into a citizen’s complaint from 10/26/2002, which lead to a sustained allegation of chain of command - The internal affairs investigation into a citizen’s complaint from 7/19/2006, for an allegation of courtesy and threats - 2011-IA-002 - 2011-IA-005 - The internal affairs investigation into a citizen’s complaint from 6/20/2011, which lead to a sustained allegation of policy and procedure violation - 2012-IA-013 - 2015-IA-005 - Any additional responsive documents since 2/27/024 4. Internal Affairs Records regarding Andrew Couture, specifically: - 2009-IA-008 - 2010-IA-012 - 2013-IA-006 - 2013-IA-025 - Any additional responsive documents since 12/6/2023. Based on the Department’s responses and the information provided in Ms. Lambert’s appeal petition, it is unclear whether the Department possesses additional records responsive to Ms. Lambert’s requests. If the Department does possess the additional responsive records described above, 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”). Conclusion Accordingly, the Department is ordered to provide Ms. Lambert 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. Ms. Lambert may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Abigail Hunt SPR25/1179 Page 5 May 13, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Elise Lambert