Mary Morgan v. Wareham, Town of (SPR 20211363)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 11, 2021 SPR21/1363 Michele Bissonnette Town Clerk 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Mary Morgan appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2021, Ms. Morgan requested “the full investigation report that was done as a response to the complaints made against [three individuals].” The Town responded on May 6, 2021, indicating that it was withholding responsive records. Previous Appeal This request was the subject of a previous appeal. See SPR21/1156 Supervisor of Records Determination (May 14, 2021). In my May 14th determination, I ordered the Town to clarify whether there is active litigation concerning the requested records. Subsequently, on May 17, 2021, the Town provided names of parties and docket numbers for a case before the Massachusetts Commission Against Discrimination (MCAD) and a case before the Suffolk Superior Court. Unsatisfied with the Town’s response, Ms. Morgan appealed, and this case 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 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

Michele Bissonnette SPR21/1363 Page 2 June 11, 2021 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. The Town’s May 17th Response In its May 17, 2021 response, the Town states the following: [T]here is pending litigation with regards to this matter. The first case is Marie T. Ciccotelli vs. Town of Wareham, et al. MCAD Docket No. 20BEM00574, EEOC No. 16C-2020-01069 which has just been recently withdrawn by the Complainant so that she may file a private right of action in civil court. The second active case is Kimberly B. Shaver-Hood vs. Town of Wareham, et al. Suffolk Superior Court, civil docket number 2083CV00992. 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. This office has reviewed the trial court’s docket and verified that civil litigation is currently pending in the Plymouth Superior Court under civil docket number 2083CV00992 involving the parties involved in this appeal. Additionally, the Town stated that Ms. Morgan has been given the opportunity to review the report in person. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Morgan 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mary Morgan