Matthew Perry v. Haverhill, City of - City Solicitor's Office (SPR 20181442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 5, 2018 SPRlS/1442 William D. Cox, Esq. City Solicitor's Office City of Haverhill 145 South Main Street Bradford, MA 01835 Dear Attorney Cox: I have received the petition of Matthew Perry of Rosen Law Office. P. C. on behalf of Richard Smyth appealing the response of the City of Haverhill (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on August 20, 2018, Emilie L. Grossman, Esq. also of Rosen Law Office. P. C. requested " ... all social media postings, texts, emails, notes, correspondence, and other documents relating to or concerning" an identified matter. The City provided a response on August 28, 2018, denying access to responsive records because Attorney Grossman has a unique right of access. The City subsequently provided an amended response on August 30, 2018. Unsatisfied with the City's responses, Mr. Perry petitioned this office and this appeal, SPRl 8/1442, was opened as a result. Status of the requestor and reason for the request Attorney Grossman should be advised that the reason for which a requestor 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 requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Grossman's purpose in making the request has no bearing on the public status of 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, § 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 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

William D. Cox, Esq. SPR18/1442 Page2 October 5, 2018 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 August 3rfh response In its August 30, 2018 response, the City indicates that pursuant to the provisions of 950 C.M.R. 32.06(1)(g), because Attorney Grossman's public records request is "made pursuant to G.L. c. 258, §4, and captioned as a demand letter under the Mass Tort Claims Act, which is a statutory prerequisite to suit thereunder, it is the City's position that [Attorney Grossman] ha[s] initiated the litigation process such that the above [referenced] regulation applies." As such, the City posits that it" ... believes that [Attorney Grossman's] request is not properly a public records request. Instead ... [it] is governed by the Massachusetts and/or Federal Rules of Civil Procedure, as applicable and not the Public Records Law. ..." Unique right of access; application of administrative appeals process The City's August 30th response indicates that because Attorney Grossman's public records request is "made pursuant to G.L. c. 258, §4, and captioned as a demand letter under the Mass Tort Claims Act, ... it is the City's position that [Attorney Grossman] ha[s] initiated the litigation process ..." and therefore has a unique right of access to the responsive records. However, it is unclear how the Massachusetts and/or Federal Rules of Civil procedure applies to Attorney Grossman's request or provides a unique right of access thereby barring the application of the administrative appeal process as required under the Public Records Law. In his petition for appeal, Mr. Perry states that "[Attorney Grossman] does not have any access to the documents through the discovery process, as [she] ha[ s] not commenced litigation . . . . [N]either the Massachusetts nor Federal Rules apply, since there is no civil case and no applicable procedure." Accordingly, whereas it appears that Attorney Grossman has not commenced litigation, the City must explain whether there is a means affording Attorney Grossman a "unique right of access" to the requested records and if so, identify the means and explain its applicability or apply the Public Records Law to the request, identify the records the City has in its possession and explain with specificity the exemptions, if any, that apply under the Public Records Law to

William D. Cox, Esq. SPR18/1442 Page 3 October 5, 2018 redact or withhold the responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Accordingly, the City is ordered to provide Mr. Perry 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 proyided 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: Matthew Perry