Lana Sullivan v. Lowell, City of - Law Department (SPR 20180123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9,2018 SPR181123 James F. Wellock, Esq. Assistant City Solicitor City of Lowell Law Department 375 Merrimack Street, 31d 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, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Sullivan requested four categories of records related to a specific Massachusetts Commission Against Discrimination (MCAD) docket as well as other documents "including any purchase orders, non-purchase orders, invoices, bills, payments andor checks" regarding identified individuals. Previous appeal This request was the subject of a previous appeal. See SPR1711714 Determination of Supervisor of Records (December 21,2018). I closed SPR1711714 by ordering the City to provide Attorney Sullivan with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a response dated January 25,201 8, the City denied access to responsive records under Exemption (d) of the Public Records Law and the attorney-client privilege. The City also provided information regarding ongoing litigation. Attorney Sullivan appealed and SPR181123 was opened as a result. 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. Bougas v. Chief of Police of Lexineon, 371 Mass. 59,64 One Ashburton Place, Room 1719, Boston, Massac.hu setts 02108 (61 7) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

James F. Wellock, Esq. Page 2 February 9,2018 (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). As such, Attorney Sullivan may wish to consider another means of seeking to obtain any existing responsive records. 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, 3 10A(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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (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 January 2fhr esponse In its January 2sthr esponse, the City cites Exemption (d) and the attorney-client privilege in support of its position to withhold records. The City asserts "[p]reliminarily, the City notes at the outset that the Requestor, Lana Sullivan, Esq. ('Attorney Sullivan'), is the attorney of record for the plaintiff in a currently pending federal lawsuit against the City. As part of this federal lawsuit, Attorney Sullivan filed with the U.S. District Court for the District of Massachusetts an Opposition to the City's Motion in Limine. In her filing, Attorney Sullivan twice expressly references this public records request and appeal as being central to her pending lawsuit, as well as her intention to use the requested documents as evidence at trial." The City further notes that the following pending lawsuits are pertinent to this public records request: "Diane Cloutier v. City of Lowell, et al., 1: 15-cv-12780-WGY, a pending federal lawsuit against the City of Lowell in which the requestor is counsel to the plaintiff; Kenneth Rossetti v. Citv of Lowell and Christine O'Connor, 1:17-cv-11395-GAO, a pending federal lawsuit against the City of Lowell brought by a former employee; Diane Cloutier v. Citv of Lowell, et al., MCAD Docket No. 12BEM00259. This matter has been dismissed by the MCAD. The Plaintiff has appealed; Kenneth Rossetti v. City of Lowell and Christine O'Connor, MCAD Docket No. 17BEM00268, an MCAD complaint filed and withdrawn by the

James F. Wellock, Esq. Page 3 February 9,2018 Complainant in order to fulfil the statutory prerequisite to bringing the above referenced federal lawsuit of the same name." With respect to the four categories of records in Attorney Sullivan's request, the City describes how the records sought, which include documents filed in a MCAD proceeding, all documents related to an expert witness for the City, all documents related to a City Physician that is part of a pending lawsuit, and records of outside counsel, are related to the pending litigation. The City notes that "[tlhe records requested were uniquely available to the requestor through judicial means." Whereas the public records in question are the subject of a dispute in active litigation, I See decline to opine on this matter. 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of the litigation could impact the applicability of 950 C.M.R. 32.08(2)@). Sincerely, Rebecca S. Murray Supervisor of Records cc: Lana Sullivan, Esq