Austin Joyce v. Somerville, City of (SPR 20171779)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 12, 2018 SPR17/1779 David P. Shapiro, Esq. Assistant City Solicitor · City of Somerville 93 Highland A venue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Attorney Austin Joyce of Reardon, Joyce & Akerson, P. C. appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Joyce requested a copy of a complaint letter made by a named City employee regarding another named City employee. In a response dated December 21, 201 7, the City denied the request pursuant to the second clause of Exemption (c) and Exemption (f) of the Public Records Law. A review of the correspondence provided to this office by Attorney Joyce and the City from December 21, 2017 reveals that Attorney Joyce represents the subject of the complaint, who is also one of the parties that the complainant filed the discrimination claims against. Attorney Joyce informed the City and this office that he seeks the complaint from the named employee in order to defend his client from an active and on-going discrimination claim at the Massachusetts Commission Against Discrimination (MCAD). In the City's December 21st response, you informed Attorney Joyce that if he obtains a release from the complainant or from the complainant's attorney, the City will provide the record. Attorney Joyce appealed the denial, and this appeal was opened. Attorney Joyce seeks the complaint made by the named complainant-employee, in order to defend his client in active discrimination claims filed with the MCAD and the federal Equal Employment Opportunity Commission (EEOC). On January 3, 2018, the City provided this office with a copy of the notification letter sent by the MCAD to all the parties, including Attorney Joyce's client, regarding the active and on-going proceedings at the MCAD and the EEOC. 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

David P. Shapiro, Esq. SPRl 7/1779 Page2 January 11, 2018 Reason for the request and the appeal process Please note that the reason for which a requester seeks access to or a copy of a record under the Public Records Law does not afford any greater right of access to the requested information than other persons in the general public. 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 Joyce's purpose in making the request has no bearing on the public status of a particular record. 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). Attorney Joyce should be advised that the appeal process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas the complaint is directly related to the active discrimination proceedings against Attorney Joyce's client and others, Attorney Joyce and his client have a unique right of access through the MCAD and EEOC proceedings, as well as the judicial process. Conclusion Accordingly, I decline to continue any further review of Attorney Joyce's petition. If Attorney Joyce 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, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Austin Joyce, Esq.