Richard Maximus Strahan v. Office of the Attorney General (SPR 20201403)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 28, 2020 SPR20/1403 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Richard Maximus Strahan appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on August 1, 2020, Mr. Strahan requested, “a copy of the typed transcript of the recent deposition of Daniel McKiernan in Strahan v. Secretary EOE&EA, et al., 1:19-cv-10639-IT … as a PDF file.” Unsatisfied with the AGO's response, Mr. Strahan petitioned this office and SPR20/1403 was opened as a result. 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, § l0A(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, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). Status of the requestor; reason for 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

Lorraine A.G. Tarrow, Esq. SPR20/1403 Page 2 August 28, 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, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Strahan’s interest in obtaining the transcript shall have no bearing on the public nature of the record. Whereas, Mr. Strahan 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. Strahan may wish to consider another means of seeking to obtain any existing responsive records. The AGO’s August 17, 2020 response In its August 17th response, the AGO stated, “… the requested record is exempt from disclosure to the public under G.L. c. 4, § 7, cl. 26(d). As a deposition transcript taken of a defendant who the AGO represents in the course of open and ongoing litigation, a deliberative process, this record contains information ‘relating to policy positions being developed by the agency’ in that it would reveal the details of the ongoing litigation …” Pending litigation 950 C.M.R. 32.06(1)(g) provides in pertinent part: 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. An AGO representative confirmed in a telephone conference with a staff attorney of the Public Records Division that this matter is pending before the United States District Court (D. Mass) Strahan v. Massachusetts Executive Office of Energy and Environmental Affairs, et al., 1:19-cv-10639-IT. In light of the pending matter, it is my determination that the records at issue in this appeal 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).

Lorraine A.G. Tarrow, Esq. SPR20/1403 Page 3 August 28, 2020 Order Accordingly, I will now consider this administrative appeal closed. 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). If Mr. Strahan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard Maximus Strahan