Mike Hammer v. Westfield, City of - Office of the City Solicitor (SPR 20253217)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2025 SPR25/3217 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. Previous Appeal This request was the subject of a previous appeal. See SPR25/2899 Determination of the Supervisor of Records (October 16, 2025). In my October 16th determination, I ordered the City to clarify whether the requested recording was created in furtherance of City business. Subsequently, the City responded on October 29, and October 31, 2025. Unsatisfied with the City’s responses, Mr. Hammer petitioned this office, and this appeal, SPR25/3217, 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 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 SPR25/3217 Page 2 November 17, 2025 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. Current Appeal In his appeal petition, Mr. Hammer argues the following: As previously submitted the dispatch call, video, and the employees’ statement in both show she was working in the building department of City Hall, was working in her official capacity as a town employee, and clearly Created a public record. . . . Here solicitor Gay has no legal reason for the denial. The evidence is clear on not only the dispatch call and video but recently there is a second video from another person showing [the individual] Creating the public record by video recording, satisfying the definition of a public record. The City’s September 23rd, October 29th and October 31st Responses In the previous September 23, 2025 response, a representative for the City provided information responsive to the request, and explained 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.” In the October 29, 2025 response, a representative for the City explains the following: As indicated in my previous response on September 23, 2025, this is the employee’s personal phone and is not the property of the City of Westfield. As the records access officer, I have the subject video in my possession. From my review of said video, the video was not created in furtherance of City business. As indicated in the recording of the employee’s 911 call to dispatch and [the requestor’s] own video that [the requestor] provided in [the] appeal email, the employee did not understand the intentions of [two individuals] and was fearful for her safety.

Robyn Gay SPR25/3217 Page 3 November 17, 2025 In the October 31, 2025 response, the representative for the City affirmed that “[p]er the reasons contained in my further response to you dated 10/29/2025, it is the City’s position that the subject video was not created in furtherance of City business.” 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 unlawfully having possession of the records, and the records shall immediately be delivered by such person to the custodian.” G. L. c. 66, § 17. Based on the information provided in the City’s October 29th and October 31st responses, in conjunction with the previous September 23rd response, the City has confirmed that the video was created on the employee’s personal device, and not on a City owned device, and has explained that the video was not created in furtherance of City business. Consequently, I find the City has met its burden to demonstrate that it has properly responded to this public records request. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Hammer 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: Mike Hammer