Lana Sullivan v. Lowell, City of - Law Department (SPR 20171714)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2017 SPR17/1714 James F. Wellock, Esq. Assistant City Solicitor City of Lowell Law Department 375 Merrimack Street, 3rd Floor Lowell, MA 01852-5909 Dear Attorney Wellock: I have received the petition of Lana Sullivan, Esq. appealing the response of the City of Lowell Law Department (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Sullivan requested four categories of records related to specific MCAD and EEOC dockets as well as "any purchase orders, non-purchase orders, invoices, bills, payments and/or checks" regarding identified individuals. In a response dated November 13, 2017, the City denied access to records under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). The City also notes "parts of each bulleted request are too vague for the City to respond because they .do not reasonably describe any particular record." Purpose of request Please note that the reason for which a requester seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record 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). Accordingly, Attorney Sullivan's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the.Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). 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

James F. Wellock, Esq. SPR17/1714 Page 2 December 21, 2017 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, § 1O (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. The City's November 13th response In its November 13111 response, the City indicates "[t]he City must deny your four-part request for public records because the records responsive to the requests are the subject of disputes in active litigation and are therefore being withheld under Exemption D." Exemption (d ) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, §7 (26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The City asserts that "[t]he Documents you requested in the first bullet of your request are not subject to disclosure under the Public Records Law as they are subject to active litigation in United States District Court: Kenneth J. Rossetti v City of Lowell and Christine P. O'Connor,

James F. Wellock, Esq. SPRl 7/1714 Page 3 December 21, 2017 Docket Number 1: 17-cv-11395-GAO." The City notes it is a party to this litigation and ''[t]hese documents are the subject of the earlier described federal lawsuit." You explain that certain "purchase orders, non-purchase orders, invoices, bills, payments and/or checks" relate to the City's expert witness in the pending case and counsel in prior proceedings. The City also refers to the attorney-client privilege in support of its position. The City provides a similar explanation for the remaining three categories of records. You also indicate that "the City denies the portions of each bulleted request that request 'all documents' on the grounds that the request is too vague for the City to respond." In her appeal petition Attorney Sullivan asserts "none of the public records requested are the subjects of the disputes in active litigation. Although Mr. Rossetti mentions in his federal court complaint that he had filed a complaint with the MCAD (in order to satisfy administrative exhaustion requirements), statements filed in the now-closed MCAD action are not 'the subject' of his dispute with the City or Ms. O'Connor." I find that the City has not met its burden to show that all responsive records are "inter agency or intra-agency memoranda or letters relating to policy positions being developed" by the City. Further, it is unclear whether there are any purely factual matters within the responsive records, particularly the requested "purchase orders, non-purchase orders, invoices, bills, payments and/or checks." See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non exempt, segregable po1iion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, the City is ordered to provide Attorney Sullivan with a response to the 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 this response to this office at pre@sec.state.ma. us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Lana Sullivan, Esq.