Ethan C. Ryder v. Cambridge, City of - Office of the City Clerk (SPR 20191254)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 3, 2019 SPR19/1254 Seah Levy Records Access Officer Office of the City Clerk City of Cambridge 795 Massachusetts A venue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Ethan Ryder, Esq. of Hamel Marcin Dunn Reardon & Shea, PC on behalf ofMakaylah Johnson appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on May 22, 2019, Ms. Johnson requested" ... copies of any and all records related to the June 23, 2015 incident and its subsequent investigation that occurred at [a specified address in Cambridge] related to [a n identified individual]." The City provided a response on June 14, 2019, which included certain responsive records that were redacted pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). The City also denied access to a responsive record pursuant to the common law attorney-client privilege. Unsatisfied with the City's response, Attorney Ryder petitioned this office and this appeal, SPR19/1254, was opened as a result. It appears Attorney Ryder is only appealing the records withheld under the attorney-client privilege. 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 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

Seah Levy SPR19/1254 Page 2 July 3, 2019 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, § 1O (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 June 14'" response In its June 14, 2019 response, the City indicates that it redacted portions of the responsive records pursuant to Exemption ( c) "[t]o protect the privacy of an individual and to protect medical information ... " The City also indicates that it withheld a "Cambridge Fire Depaiiment CAD Incident Report# 15050986, ... 06/23/2015" under the attorney-client privilege" ... because it relates to privileged confidential attorney-client communications made for the purpose of facilitating the rendition of legal advice between Law Department attorneys and staff, and the Fire Department staff as their clients." Subsequent to the opening of this appeal, I learned that on July 3, 2019, the City provided Attorney Ryder with a supplemental response which included responsive records pertaining to this request. Conclusion Accordingly, whereas this appeal was opened because of the City's failure to provide a portion of the responsive records, I will now consider this administrative appeal closed. Attorney Ryder may appeal the substantive nature of the City's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Ethan Ryder, Esq.