Franchesca M. Ferguson v. Yarmouth, Town of - Police Department (SPR 20200131)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen1isor ofR ecords February 6, 2020 SPR20/0131 Officer Nicholas R. Giammarco Town of Yarmouth - Police Department Records and Evidence Division 1 Brad Erickson Way Yarmouth, MA 02673 Dear Officer Giammarco: I have received the petition of Franchesca M. Ferguson, Esq. of the Law Office of Franchesca M Ferguson appealing the response of the Town of Yarmouth Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Ferguson requested reports relating to an identified individual. In a January 21, 2020 letter, the Department denied the request in its entirety under Exemption (a) of the Public Records Law and G. L. c. 41, § 97D. As a result, Attorney Ferguson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Attorney Ferguson's January 21, 2020 appeal petition indicates that her office represents an identified person in two pending court actions at Barnstable District Court and Orleans District Court that are scheduled for February 12, 2020 and February 13, 2020. It is Attorney Ferguson's contention that the police repo1is are highly relevant to defending these actions against her client. See Barnstable District Cami (Docket No. l 925R00524). Purpose of the request Attorney Ferguson is advised 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 Bou gas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Ferguson'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 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

Officer Nicholas R. Giammarco SPR20/0131 Page 2 February 6, 2020 and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a pmiy's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). Active 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. Accordingly, whereas, both the Department and Attorney Ferguson have informed this office that the record is sought by the defendant for pending court hearings, I decline to opine any further on this matter at this time. See 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Franchesca M. Ferguson, Esq.