Hed Ehrlich v. Brockton, City of (SPR 20190680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 12, 2019 SPR19/0680 Megan D. Bridges City of Brockton 45 School Street Brockton, MA 02301 Dear Ms. Bridges: I have received the petition of Hed Ehrlich, Esq. of the Justice Center ofS outheast Massachusetts, LLC appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 25, 2019, Attorney Ehrlich requested copies of" ... any and all public records in [the City's] custody or control, including but not limited to all notes, reports, written communications, documents, or photographs relative to any permits, inspections, complaints, or other procedure in relation to the property located [at a specified address] [f]rom February 1, 2018 to date." The City provided an initial response, which included responsive records in redacted form. In a subsequent response dated March 18, 2019, the City claimed the records were redacted pursuant to Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Unsatisfied with the City's response, Attorney Ehrlich petitioned this office and this appeal, SPRl 9/0680, was opened as a result. While this appeal was pending, the City provided a supplemental response dated April 4, 2019. It appears Attorney Ehrlich is only appealing the redactions pertaining to unit numbers. Purpose of request; identity of requestor Please note 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 Ehrlich'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, 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

Megan D. Bridges SPR19/0680 Page 2 April 12,2019 this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Ehrlich 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, § 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 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. 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 March 18th response In its March 18, 2019 response, the City states that "[t]he redaction of the unit numbers pursuant to M.G.L. c. 4, § 7(26)(f) ('investigative material') is for the protection of those individuals lodging complaints with the city .... [I]f [Attorney Ehrlich] would like un-redacted documents for a case [he] ha[s ] pending in Housing Court, the correct method is by subpoena. Please obtain a subpoena from the Housing Courts." The City's April 4th supplemental response In its April 4, 2019 supplemental response, the City claims that Attorney Ehrlich's request" ... was made pursuant to series of Temporary Restraining Orders ('TRO') (See Docket No. 19H82-CV-0016 & 19H82-CV-00019) and litigation currently pending in the Metrosouth Housing Court (See Docket No. 19H82-SP-00681 O)." As such, the City claims that Attorney Ehrlich is requesting these records for litigation purposes. The City claims that although the records are public records, they are subject to redaction pursuant to Exemption (f) which" ... permits the redaction of information the [sic] 'would

Megan D. Bridges SPR19/0680 Page 3 April 12, 2019 probably so prejudice the possibility of effective law enforcement.' Here, the redacted information protects the identity of tenants logging complaints with the Board of Health ('BOH')." The City contends that "[i]f the information was not protected from disclosure, tenants would be less incline to come forward out of fear of retaliation and/or discrimination in future rental applications. [A] landlord screening applicants could determine whether the applicant had ever made a BOH complaint by cross-referencing the applicant's prior addresses with BOH reports obtained by public records request." The City asserts that "[t]he BOH relies on tenants complaints to conduct effective law enforcement." Further, citing 950 C.M.R. 32.08(1)(a) and 950 C.M.R. 32.08(2)(b), the City asserts that "[s ] ince the requested documents are the subjects of active litigation this appeal is not an available remedy .... Allowing this appeal would contradict the underlying policy of the [above cited regulation] and impact its applicability." Indicating that Attorney Ehrlich has a unique right of access to the non-redacted records by way of subpoena, the City requests that this appeal should be denied. Whereas the public record in question is the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation"). 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). Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Hed Ehrlich, Esq.