Paul Baxter, Ph.D. v. Somerville, City of - City Clerk (SPR 20171076)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 22, 2017 SPR17/1076 John J. Long City of Somerville - City Clerk City Hall 93 Highland A venue Somerville, MA 02143 Dear Mr. Long: I have received the petition of Paul Baxter, Ph.D appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 1, 2017, Dr. Baxter requested "[a]ny and all records and documents (whether on paper or in electronic form) sent to or received by" an identified individual "between August 2011 and December 2013, which relate to or concern the proposed Somerville Progressive Charter School." Dr. Baxter also requested "[a]ny and all records and documents (whether on paper or in electronic form) sent to or received by" another identified individual "between August 2011 and December 2013, which relate to or concern the proposed Somerville Progressive Charter School." In a response dated June 20, 2017, the City denied his request. Unsatisfied with the City's response, Dr. Baxter petitioned this Office and this appeal, SPR1711076, 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, § lOA( 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 town 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, § 1 O(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. 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

John J. Long Page 2 SPR1711076 August 22, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 June 20th response In the City's June 20th response, it indicated that" ... I write to advise you that the requested documents will not be produced at this time ...." The City indicated that "the records requested by you ... are the same records previously sought in motion to compel in a very active and ongoing litigation in U.S. District Court of Mondo! et al v. City ofS omerville, et al." You also indicated that the Judge in that litigation, "issued an Order that the City of Somerville did not have to produce documentation relative to the Plaintiffs' continued requests for documentation relative to the proposed Somerville Progressive Charter School, and issued a protective order prohibiting further discovery requests on that topic, among others." You also indicated that the plaintiff's counsel "made a public records request for Somerville Progressive Charter School records which the City denied." In response to the attorney's "subsequent appeal of this denial, the Supervisor of Public Records issued a letter declining to review this appeal (SPR16/964), stating that the records sought were applicable to the protective order issued by" the Judge "and thus not available for public disclosure at this time pending the end oflitigation." The City further indicated that "[y]our new public records request ... again seeks the same documents that are subject of the Federal Court Order, and previous letter issued by the Supervisor of Public Records. Dispositive summary judgment motions are currently pending in this litigation and have been since April 2017. Therefore, because litigation is still on going in the instant case ... , the prior letter issued by the Supervisor of Public Records still applies, and the City again denies production of the documents requested." Based on the City's response, it is unclear what Exemptions under the Public Records Law the City is claiming to withhold the entire records. If the City maintains that any portion of the responsive records are exempt from disclosure it must provide a written explanation, with specificity, how a particular exemption applies to the 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. Also, from its response, it is unclear how the order entered by the Judge against the plaintiff's attorney in the ongoing litigation applies to this request by Dr. Baxter. As mentioned by Dr. Baxter, he is not a party to the lawsuit neither was he involved in any public records requests that may have been made by the plaintiffs in the case. Accordingly, the City must explain how the Judge's protective order affects any subsequent requester of public records or how it relieves the City of its responsibility to provide records that otherwise may be public.

John J. Long Page 3 SPR17/1076 August 22, 2017 Request for relieff rom obligation to produce responsive records Based on the City's response, the City is seeking relief from its obligation to produce responsive records. G. L. c. 66, § lO(c); see also 950 C.M.R. 32.06(4). In its June 20th response, the City requested that the Supervisor issue an order authorizing the City not to respond to Dr. Baxter's records request. The basis of this request is that the City believes that "[g]iven the above procedural history relative to your request for this information, including your requests being nearly identical to Plaintiffs counsel's" previous request, "and your new request coming only one day after the City issued a denial" of records to another requester "also seeking documents denied by the protective order and previous letter issued by the Supervisor of Public Records, you appear to be seeking documents entirely unrelated to the [P]ublic [R]ecords [L]aw, and merely for the purposes of harassment of the City." The City further indicated that "[i]n the alternative, this request may be yet another attempt by Plaintiffs counsel in this ongoing litigation, to harass the City and bypass the judicial order entered in the case ... and the previous letter issued by the Supervisor of Public Records." Therefore, "the Supervisor of Public Records in this instance should therefore relieve the City from having to provide copies of any of the requested records while the litigation in Mondo! et a! v. City of Somerville, eta!. is ongoing." Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In making this determination the Supervisor shall consider certain factors. If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. G. L. c. 66 § 10( c). Whereas the City has not filed such a petition to the Supervisor I decline to issue a determination on this matter. If the City wants to be relieved of its responsibility to produce the responsive records, it may submit a petition seeking a relief in accordance with G. L. c. 66 § 10( c). Conclusion Accordingly, whereas the City has indicated that it will provide Dr. Baxter with a supplemental response, I will consider this appeal closed with the proviso that the City provides said response 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 this response to this office at pre@sec.state.ma.us. Dr. Baxter may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1).

John J. Long Page4 SPR17/1076 August 22, 2017 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Paul Baxter, Ph.D