Masha Shoykhet v. Somerville, City of - Law Department (SPR 20170839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3,2017 SPR171839 Shannon T. Phillips, Esq. Assistant City Solicitor City of Somerville Law Department 93 Highland Avenue Somerville, MA 02 143 Dear Attorney Phillips: I have received the petition of Masha Shoykhet appealing the response of the City of Somerville Law Department (City) to a request for public records. G. L. c. 66 fj 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Shoykhet requested a copy of all records created between January 20 13 and the present regarding the City's response to a matter involving criminal charges and the arrest and prosecution of an identified person. The City denied the request due to active and ongoing litigation and a court protective order covering the responsive records. Ms. Shoykhet appealed. Prior appeals The responsive records were the subject of a prior appeal by Ms. Shoykhet. See SPRl71704 Supervisor of Records Determination (Supervisor) (April 4,2017). In my April 4th determination, I closed the appeal because Ms. Shoylchet filed her appeal beyond the ninety day requirement. A petition for an appeal of a response by a Records Access Officer (RAO) must be made within ninety (90) calendar days of the date of the response or a failure to respond. 950 C.M.R. 32.08(l)(d),(e). The responsive records were also requested by another person in 2016. See SPR161964 Supervisor's Determination (November 10,2016 ). The Supervisor declined to rule on the public disclosure of the records due to active and on-going litigation in United States District Court for the District of Massachusetts (Court), and the Court's protective order denying access to the records requested. See Mondel, et al. v. The City of Somerville, et al., C.A. No. 1:15-cv-13697- ADB . Ms. Shoykhet should be advised that her status as a parent of children who are in the School District does not provide her with any greater right of access to records under the Public Records Law than any other person in the public realm. See G. L. c. 66, fj 10(a) (public records 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

Shannon T. Phillips, Esq. Page 2 July 3,2017 are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1 976). Access to a record pursuant to the Public Records Law rests on the content of the record. Therefore, Ms. Shoykhet's status as a parent of children in the School District shall play no role in a determination as to whether the records should be disclosed to the public-at-large. Your June 7mr esponse states that the requested records are the same records that are protected by the federal court's protective order in the active litigation and that the Supervisor previously ruled on in 201 6. Whereas, dispositive summary judgment motions are currently pending in the Mondol case, and the protective order is still in place, the City denies public disclosure of these records at this time. The City cites Commonwealth v. Fremont Inv. & Loan as controlling in this matter to withhold the recordsduring the litigation. In Fremont, the Supreme Judicial Court ruled that documents governed by a court-issued protective order were not subject to disclosure under the Public Records Law. See Commonwealth v. Fremont Inv. v. Loan, 459 Mass. 209,211-216 (201 1). The Court held that "the issuance of such protective orders is among the inherent powers of a court, and that such orders serve to shield litigants and third parties from unwarranted a. disclosures, and, as a practical matter, to facilitate the discovery necessary for a trial." at 213- 14. The City previously provided this office with correspondence regarding the protective order on the active litigation in the Court, and informed this office by telephone after the current appeal was opened that the litigation is still on-going and that the protective order is still in effect. Moreover, the Supervisor may deny an appeal where the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. See 950 C.M.R. 32.08(2)(b)(l). Accordingly, whereas the requested records are the same records that are subject to the protective order of the United States District Court in the District of Massachusetts regarding the active litigation, I decline to continue any further review of this appeal. If Ms. Shoykhet 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, 5 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Masha Shoykhet