Mike Hammer v. Westfield, City of - Office of the City Solicitor (SPR 20252899)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2025 SPR25/2899 Robyn Gay Records Access Officer City of Westfield 59 Court Street, Room 320 Westfield, MA 01085 Dear Ms. Gay: I have received the petition of Mike Hammer appealing the response of the City of Westfield (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 10, 2025, Mr. Hammer requested the following: [A]ny video or pictures taken on September 9, 2025 by [a named individual], between 3:15 pm and 4 pm. I believe [the individual] works in the building department. I’m asking at this time that any video be preserved and not altered or deleted. essentially a cease vand desist for the video or pictures or both. [sic] I’m also requesting the salary and last pay stub for [the individual] along with the woman who works in the mayor’s office. The City responded on September 23, 2025. Unsatisfied with the City’s response, Mr. Hammer petitioned this office, and this appeal, SPR25/2899, 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 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

Robyn Gay SPR25/2899 Page 2 October 16, 2025 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. Current Appeal In his appeal petition, Mr. Hammer argues the following: I’m filing an appeal on a denial from a record request I placed September 10, 2025 with the town of Westfield regarding a video taken by the employee . . . September 9, 2025. [The employee] was acting in her official capacity and working on the taxpayer’s dollar while taking this video. The request specifically stated to the town of Westfield make sure the video not be deleted or edited. The town’s response is the claim that because she used her personal phone to record while working in her official capacity. Based on a review of his appeal petition, I understand Mr. Hammer objects only to the withholding of the video described above. The City’s September 23rd Response In its September 23, 2025 response, the City states the following: In my capacity as Records Access Officer, I have made every reasonable effort to retrieve all the documents that were requested in the City’s possession and control. . . . Please be advised that we are not able to provide any video or pictures taken on September 9, 2025, by [the employee] as the phone that was used is not the property of the City of Westfield as it is her own personal device. Possession, Custody, or Control Please be 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). Additionally, 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 Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). In cases where records are created in furtherance of City business, the City has a statutory duty to demand delivery of its public records that are outside of its possession. “If the custodian does not have custody of public records, the custodian shall demand delivery from any person

Robyn Gay SPR25/2899 Page 3 October 16, 2025 unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. In this case, based on the information provided in the City’s September 23rd response, and the issues raised in Mr. Hammer’s appeal petition, it is unclear whether the requested recording was created in furtherance of City business. The City must clarify this. Conclusion Accordingly, the City is ordered to provide Mr. Hammer 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. Mr. Hammer may further appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Mike Hammer