Ken Williams v. Brockton, City of - Law Department (SPR 20190541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

March 25, 2019 SPR19/0541

Karen Fisher, Esq.

City of Brockton — Law Department 45 School Street

Brockton, MA 02301

Dear Attorney Fisher:

I have received the petition of Ken Williams appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Williams requested “a list of ‘individual’ traffic stops 2004 - present” including ““{d]ate, time and place of stop;” “[rlace, ethnicity, gender of driver;” “[rJesult of stop, i.e., ticket, warning, arrest, marijuana citation);” “‘[w]as there a search and, if so, any results;” and “officer name.” The City denied his request claiming the “subject matter of [Mr. William’s] request involves a pending lawsuit that [Mr. Williams has] brought against the City.”

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, § 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, § 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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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

Karen Fisher, Esq. . SPR19/0541 Page 2 March 25, 2019

Appeal

In its response, the City indicates that as Mr. Williams is aware, “the subject matter of [his] request involves a pending lawsuit that [he has] brought against the City. See, Ken

Williams v. City of Brockton, et al., United States District Court Civil Action No. 1:12-cv- 12193-IT.”

The City asserts that “[i]n the pending lawsuit [Mr. Williams] filed against the City, Judge Talwani recently issued an Order on February 12, 2019 denying any further extensions of discovery deadlines beyond those allowed in the amended scheduling order. The discovery deadline for the information [Mr. Williams is] requesting within [his] public records request was July 13, 2018 and any motion to compel documents was due by July 20, 2018. Despite the clear and unequivocal deadlines set by the Court, [Mr. Williams is] now attempting to gain access to the City’s records for the purposes of litigation by abusing the public records law rather than pursuing same through the appropriate forum.”

Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation.

Whereas the requested records at issue in this appeal relate to the subject matter of a dispute in active litigation between the requestor and the City, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(1); Ken Williams v. City of Brockton, et al., United States District Court Civil Action No. 1:12-cv-12193-IT. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b)(1).

If Mr. Williams 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, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

boson

Rebecca S. filerca." Supervisor of Records

ce: Ken Williams