Jessica Fleet v. Worcester, City of - Law Department (SPR 20211128)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2021 SPR21/1128 Michael Vigneux Records Access Officer City of Worcester Law Department 455 Main Street, Room 303 Worcester, MA 01608 Dear Michael Vigneux: I have received the petition of Jessica Fleet appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2021, Ms. Fleet requested “[a]ny and all internal affairs, anti-corruption, or other disciplinary investigations pertaining to Worcester Police Officer . . . from January 1, 2010-December 31, 2014.” The City responded on April 7, 2021, denying access to responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the City’s response, Ms. Fleet petitioned this office and this appeal, SPR21/1128, 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, § 10A(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); 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 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records 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

Michael Vigneux SPR21/1128 Page 2 May 14, 2021 custodian must provide the responsive records. The City’s April 7th response In its April 7, 2021 response, the City asserts “[r]esponsive records have been withheld pursuant to exemption (d) the deliberative process exemption. . . . Massachusetts courts and the Massachusetts Supervisor of Records have found that records concerning ongoing litigation fall within exemption (d). A government entity may use the deliberative process exemption as a basis for withholding requested materials where the deliberative process is ‘ongoing and incomplete.’ Lafferty v Martha’s Vineyard Comm’n, No. 03-3397, 2004 WL 792712 (Mass. Super. Apr. 9, 2004), at *3. A public entity, when engaged in litigation, should not be impeded in its defense of matters by being required to produce documents that are the subject of the litigation due to its status as a public entity. See DaRosa v. City of New Bedford, 471 Mass. 446, 453-4 (2015).” The City contends, “[t]he requested record pertains to ongoing and incomplete litigation. These records concern an officer who is the subject of pending civil rights litigation and the release of the record could impact the ongoing proceedings; this record is exempt from disclosure and has been withheld accordingly.” In an email correspondence on May 11, 2021, the City provided the case name and docket number as, “Richard A. Jellyman v. City of Worcester, et al - 4:18-cv-40030-TSH.” Pending 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. In light of the pending matter, it is my determination that the requested records at issue in this appeal are the subject of 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)(1). Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Fleet 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).

Michael Vigneux SPR21/1128 Page 3 May 14, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Jessica Fleet