Eric Kuritsky v. Somerville, City of - City Clerk (SPR 20160061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 29, 2016 SPR16/061 Mr. John Long City Clerk, City of Somerville City Hall, 93 Highland Ave Somerville, MA 02143 CustodianAddress Dear Mr. Long: I have received the petition of Eric Kuritsky appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). In his petition, Mr. Kuritsky indicated that he "requested and obtained" a garage license application for a particular applicant; however, the mobile phone number provided by the applicant was redacted. In a January 21, 2016 email you informed Mr. Kuritsky of his administrative right of appeal; however you failed to inform him of the exemption that justified redaction. Mr. Kuritsky appealed. "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26) (emphasis added). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Right ofA ccess In both his petition to the Public Records Division Mr. Kuritsky indicates that he is a private investigator working on behalf of a local law firm investigating a motor vehicle accident. It is important to note that Mr. Kuritsky's status in the matter in question, and reasons for seeking public records, does not afford any greater right of access to the requested information OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. John Long SPR16/061 Page 2 January 29, 2016 than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Please be advised the Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by City did not contain the specificity required in a denial of access to public records. Accordingly, City is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. On January 27, 2016, Attorney David Shapiro from the City Solicitor's, office notified a member on my staff that the City intends to provide a revised response to Mr. Kuritsky. Whereas this matter was opened based upon the City's failure to provide a proper response, I will now consider this administrative appeal closed with the proviso that the City provides a revised response to Mr. Kuritsky within ten (1 0) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the City maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Kuritsky a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Kuritsky may appeal the substantive nature of the City's response within ninety (90) days. See 950 C.M.R. 32.08(2). If he wishes to appeal the City's response Mr. Kuritsky must provide to this office with his written appeal petition "a copy of the letter by which the request was made, and if available, a copy of the letter by which the custodian responded." 950 C.M.R. 32.08 (2). The Regulation further states that "[a]n oral request, while valid as a public record request pursuant to 950 CMR 32.05(3), may not be the basis of an appeal under 950 CMR 32.08." To assist the City in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf.

Mr. John Long SPR16/061 Page 3 January 29, 2016 Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further i ormation. Enclosure cc: Mr. Eric Kuritsky