David Webb v. Worcester, City of (SPR 20253368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 26, 2025 SPR25/3368 Alexandra H. Kalkounis, Esq. City Solicitor City of Worcester 455 Main Street, Room 301 Worcester, MA 01608 Dear Attorney Kalkounis: I have received the petition of David Webb appealing the response of the City of Worcester (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 5, 2025, Mr. Webb requested, “BWC of the The [sic] first officer on scene 76 FRANKLIN_ST between 11:50PM 8-9-24 and 12:05 AM 8-10-24.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2609 Determination of the Supervisor of Records (September 16, 2025). In my September 16th determination, I ordered the City to clarify if it possessed additional responsive records. Specifically, I found that the City must clarify whether any additional responsive records had been destroyed and, if so, whether it followed proper records retention protocol. Subsequently, the City responded on November 10, 2025. Unsatisfied with the City’s response, Mr. Webb petitioned this office and this appeal, SPR25/3368, 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. 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

Alexandra H. Kalkounis, Esq. SPR25/3368 Page 2 November 26, 2025 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 City’s November 10th Response In its previous August 22, 2025 response, the City indicated that it previously provided the responsive record to Mr. Webb in its response to a prior request from Mr. Webb to the City. Specifically, the City advised, “[t]he record responsive to your request . . . is the same record provided in response to your prior request, W074633-072825. The record provided 07/31/2025 remains available under that reference number.” In its November 10, 2025 response, the City advised that it “conducted a diligent review of its files and has determined there are no responsive records to [the] request.” The City further noted, “[t]o clarify, we are not able to locate any body worn camera footage of this incident other than what was provided to you on July 31, 2025, in response to Reference # W074633-072825.” Current Appeal In his November 14, 2025 appeal petition, Mr. Webb states that the City has “not [clarified] whether this officers bodyworn camera existed footage [sic] and was then deleted, or if . . . [the officer did not] create the record in the first place.” Records in Existence 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). 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). Based on the City’s response, in conjunction with Mr. Webb’s appeal petition, I find that it remains unclear whether a record responsive to body worn camera footage from “[t]he . . . first officer on scene[,]” as indicated in Mr. Webb’s above request, existed and was destroyed, or whether the record did not initially exist. See G. L. c. 66, § 10(a)(ii), (b)(ii). Further, if the record was destroyed, I find that the City must demonstrate whether it followed proper records retention protocol. The City must clarify these matters.

Alexandra H. Kalkounis, Esq. SPR25/3368 Page 3 November 26, 2025 Conclusion Accordingly, the City is ordered to provide Mr. Webb with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Webb may appeal the substantive nature of the City’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: David Webb