Flavia Perea v. Somerville, City of (SPR 20212219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 13, 2021 SPR21/2219 Francis X. Wright, Esq. City Solicitor City of Somerville 93 Highland Avenue Somerville, MA 02143 Dear Attorney Wright: I have received the petition of Flavia C. Perea and Sean Roberson appealing the response of the City of Somerville (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2021, Ms. Perea and Mr. Roberson, requested, among other items: Written communications, including emails and letters, sent and/or received by at least one employee, agent, or representative of the City of Somerville and all of its departments and agencies regarding [an identified individual] or the investigation [Ms. Perea and Mr. Roberson] requested on his behalf, from November 12, 2019 to the present day, including but not limited to: a. Mayor’s Office; b. City Hall; c. Somerville City Council; d. Somerville Police Department (i.e. Incident# 19064757); e. Health and Human Services; f. Somerville School Committee; and g. Somerville Public Schools (for any communications that are not considered part of [the identified individual’s] student record, as [they] have submitted a separate Student Records Request for those to the Somerville Public Schools). Previous Petition This request was the subject of a petition from the City. See SPR21/1001 Supervisor of Records Determination (April 22, 2021). In my April 22nd determination, I granted the City an extension of 30 business days. The City responded to Ms. Perea and Mr. Roberson on June 3, 2021, claiming to withhold responsive records in their entirety pursuant to Exemption (c) of the 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

Francis X. Wright, Esq. SPR21/2219 Page 2 September 13, 2021 Public Records Law. Unsatisfied with the City’s response, Ms. Perea and Mr. Roberson 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 municipality 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 custodian must provide the responsive records. 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: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has been informed that a complaint was filed in Middlesex Superior Court on September 1, 2021. See City of Somerville v. Rebecca Murray, as Supervisor of Public Records, (Middlesex Superior Court Docket No. 2181CV01913). In light of the pending matter, I decline to opine on these matters 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). Conclusion Accordingly, I will now consider this administrative appeal closed. If Ms. Perea and Mr. Roberson are 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, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial

Francis X. Wright, Esq. SPR21/2219 Page 3 September 13, 2021 remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Flavia C. Perea