David Calhoun v. Cambridge, City of - Law Department (SPR 20200031)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 21, 2020 SPR20/0031 Seah Levy Public Records Access Officer City of Cambridge Office of the City Clerk 795 Massachusetts A venue Cambridge, MA 0213 9 Dear Ms. Levy: I have received the petition of David Calhoun 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 December 3, 2019, Mr. Calhoun requested "all emails sent or received by [c e1iain] [t own of Weston] ... [e ]mployees from January 2016 to December 2, 2019 that include or reference to Stony Brook, Stony Brook Reservoir, Weston ... Rivers Protection Act [and] [c ertain] [addresses] or any of those words/subjects." Mr. Calhoun further requested, "all emails sent or received by [ce1iain] [town of Weston] [e]mployees from or to the Weston Town Manager, Weston conservation members and or Agent Weston ... Board of Selectmen now or previously seated, Weston Town Planner and all from Jan 1, 2016 to December 2, 2019." Previous appeal This request was the subject of a previous appeal, which I closed because the City provided Mr. Calhoun with a further response to his request. See SPRl 9/2513 Determination of the Supervisor of Records (January 7, 2020). In the City's January 7th response, it asse1ied that it was withholding records pursuant to Exemption ( d) of the Public Records Law and the requested records are related to "the pending ZBA Appeal filed as 104 Stony Brook, LLC v. Weston Zoning Board of Appeals No. 2017-14 in the Housing Appeals Committee." Unsatisfied with this response, Mr. Calhoun appealed and SPR20/003 l was opened. Status of the requestor; reason/or the request 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 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 SPR19/2513 Page2 January 21, 2020 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 G. L. c. 66, § IO(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Calhoun's interest in obtaining the reports shall have no bearing on the public nature of the record. Whereas, Mr. Calhoun seeks the report for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Calhoun may wish to consider another means of seeking to obtain any existing responsive records. Pending litigation 950 C.M.R. 32.06(1)(g) provides in pertinent paii: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 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. The City informed this office that a matter is pending before the Housing Appeals Committee, 104 Stony Brook, LLC v. Weston Zoning Board of Appeals, No. 2017-14. The City moved to intervene which was allowed by the Housing Appeals Committee on November 26, 2019 and as such, the City is now a party to the pending litigation. In light of the pending matter, it is my determination that the records at issue are the subject of a dispute in active litigation. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). 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). Sincerely, ~ I T ~ Supervisor of Records cc: David Calhoun