Kimberly S. Courtney v. Cambridge, City of - Office of the City Clerk (SPR 20191788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen,isor of Records September 17 , 2019 SPR19/1788 Seah Levy Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts A venue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Kimberly S. Courtney, Esq. appealing the response of the City of Cambridge to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 6, 2019, Ms. Courtney requested:" ... a complete copy of the ' transcripts in the public record of the ABCC appeal hearings of CoffeeShop LLC regarding the suspensions of its liquor license; and a complete copy of the transcripts in the public record of the ABCC appeal hearings of CoffeeShop LLC regarding the package store application denial." Attorney Courtney also states in her request, "[t]hese transcripts are in the public record, likely in the files of Keplin Allwaters and Kate Hoffman in the Cambridge Law Department." In its initial response on August 19, 2019, the City denied Attorney Courtney's request for the hearing transcripts from the proceedings at the Commonwealth of Massachusetts Alcoholic Beverage Control Commission (Commission) under G. L. c. 221, § 88 and under 801 C.M.R. 1.02(10(k)(2) as this statute and regulation operates through Exemption (a). The City contends, "[t]he requirement that transcripts be purchased from the court stenographer has previously been brought to [Attorney Courtney's] attention by the [Commission] staff, and by the stenographer for [Attorney Courtney's] appeals." As a result of the denial, Attorney Courtney petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Further, Attorney Courtney asserts that she should not be required to obtain the transcripts from the Commission because the City received the hearing transcripts from the Commission, the transcripts are public records and should be provided to her under the fees in the Public Records Law instead of through the Commission. In its September 13, 2019 response, the City explained, "the Commission held appeal 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, Esq. SPR19/1788 Page 2 September 17, 2019 hearings pursuant to G. L. c. 138, § 67 from the City's Board of License Commissioners (Board) .in November 2018 and January 2019 which led to the suspension of the liquor license of CoffeeShop, LLC d/b/a Upper West and appeal hearings pursuant to G. L. c. 138, § 67 from the Board's February 6, 2019 decision to deny UpperWest's application for a G. L. c. 138, § 21 package store license." The appeal hearings were held at the Commission on March 7, 2019; April 9, 2019; May 6-7, 2019; June 24-25, 2019 on the suspension of the license; and on June 13t\ 17th; 20th and July 5th pertaining to the package store appeal. It is my understanding that Attorney Courtney and Xavier J. Dietrich, who are the co-owners and managers ofUpperWest, represented UpperW est in each of the appeal hearing. See COFFEESHOP, LLC d/b/a UPPERWEST, Appellant, v. CAMBRIDGE BOARD OF LICENSE COMMISSIONERS, Appellee, Alcoholic Beverages Control Commission, License No. 0166-00441. Furthermore, in the September 13th response, Assistant City Solicitor Keplin K. U. Allwaters, Esq. states, "[t]he [Commission] records the appeal hearings and contracts with a stenographer to provide transcripts to the [Commission] and copies to appellants wh.o pay for such copies. Indeed, the [Commission] is required under G. L. c. 30A, § 11(6) [the Administrative Procedures Act] to 'make available an official record, which shall include testimony and exhibits .. .If so requested, the agency may, unless otherwise provided by any law, require the party to pay the reasonable costs of the transcript before the agency makes the transcript available to the party.'" It is Attorney Courtney's contention that since the City has a copy of the transcripts from the administrative adjudicatory proceedings, the City should provide the transcripts under the Public Records Law and its fee schedule. The City argues that " ... the transcripts in question are not the City's transcripts, but rather, they are copies paid for by the City of the official record on file at the [Commission] of the proceedings in the Suspension and Package Store Appeals held before the [Commission]." It is my understanding that the parties to the proceedings at the Commission are entitled to a copy of the transcripts, may request a copy of the transcript(s), and upon payment of the invoice from the Commission, the party will receive a copy of the transcript. 801 C.M.R. 1.02(10)(k)(2) states: Stenographic or Taped Record. All evidence and testimony at the hearing shall be recorded either stenographically or by Electronic Medium. The Presiding Officer shall arrange for verbatim transcripts of the proceedings to be supplied at cost to any Party upon request, at the Party's own expense ... Unique Right of Access The City infonned this office that the proceedings at the Commission are still active and ongoing since the Commission has yet to render a final decision, and since the records relate directly to the proceedings, entitlement to a copy of the Commission transcripts is governed by the Administrative Procedures Act, G. L. c. 30A, § 11(6) and its Regulations, not the Public Records Law. Whereas Attorney Courtney is a party to the proceedings at the Commission, she has a unique right of access to these records through the Commission, I decline to opine on this

Seah Levy, Esq. SPR19/1788 Page 3 September 17, 2019 matter. Please be advised, the Supervisor may deny an appeal 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; or where the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. See 950 C.M.R. 32.08(1)(a); see also 950 C.M.R. 32.08(2)(b). Accordingly, I consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kimberly S. Courtney, Esq.