Sammy Nabulsi v. Quincy, City of - Office of the City Clerk (SPR 20181706)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 30, 2018 SPRlS/1706 John E. Bacon, Esq. Assistant City Solicitor City of Quincy 1305 Hancock Street Quincy, MA 01269 Dear Attorney Bacon: I have received the petition of Sammy Nabulsi, Esq. appealing the response of the City of Quincy (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Nabulsi requested 20 categories of records related to the Long Island Bridge. The City initially responded on October 17, 2018 and Attorney Nabulsi appealed. 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, § 1O A( 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, § lO(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. Appeal In its October 1i h response the City informed Attorney Nabulsi it required additional time to respond to the request. The City also referenced 950 C.M.R. 32.08(2)(b) and DaRosa v New Bedford, 4 71 Mass. 446 (2015). AttorneyNab1Hsi appealed this response, indicating that the City " ... is in violation of the Massachusetts Public Records Law because it has failed to One Ashbmton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

John E. Bacon, Esq. SPRI8/1706 Page 2 November 30, 2018 respond to BPWD's October 4, 2018, public records request within ten business days, and, to the extent the City of Quincy's letter, dated October 17, 2018, is the response, its contents failed to comply with the requirements of Mass. Gen. Laws ch. 66, § 10, and 310 Code Mass Regs. 32.06(3)." The City subsequently provided a response on November I 2, 2018. This response explains that the City". .. restates its reasoning supported by (a) the provisions of950 CMR 32.08(2)(b) exempting any records that are 'the subject of disputes in active litigation, administrative hearings or mediation' and (b) DaRosa v New Bedford, 471 Mass. 446 (2015) exempting records constituting attorney work product, subject to attorney-client privilege or prepared in anticipation of litigation that might reveal the mental impressions or strategy of counsel in pending or anticipated litigation." Attorney Nabulsi informed this office that he objects to this response. The City submitted a response to this office on November 29, 2018, to which Attorney Nabulsi was copied. This response indicates that" ... every document requested in the PRR is directly related to the subject matter of active Superior Court litigation and administrative adversarial proceedings before the Department of Enviromnental Protection ('DEP') and the Executive Office of Energy and Environmental Affairs, Massachusetts Environmental Policy Act ('MEPA') office." You also note that "[t]he Superior Court, DEP and MEP A have processes and rnles to control the orderly discovery and exchange of information that such adjudicatory governmental bodies determine to be relevant to those proceedings." The City refers to an "EEOA MEPA" case, two DEP appeals, and two cases in Suffolk Superior Court (Suffolk Superior Court Civil Action Number 18-3629 and Suffolk Superior Court Civil Action Number 18-3440). I find that in light of the City's November 291 response that provides additional " information regarding its exemption claims and active litigation, I will consider this appeal closed. Attorney Nabulsi may appeal the substantive nature of this response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Sammy Nabulsi, Esq.