Mikhael El-Bayeh v. Attorney General's Office (SPR 20220390)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2022 SPR22/0390 Lorraine Tarrow, Esq. Records Access Officer Attorney General’s Office One Ashburton Place Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Michael El-Bayeh appealing the response of the Attorney General’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 1, 2022, Mr. El-Bayeh requested: [A]ll records, including, but not limited to, case files and other written materials or communications, related to the cases listed below: 1. Mikhael El‐Bayeh vs. Massachusetts Department of Transportation et al.; Middlesex Superior Court Docket No. 2181CV02077. 2. El‐Bayeh v. Sierra; District Court, D. Massachusetts Docket No. 1:21‐cv‐11674. 3. Mikhael El‐Bayeh vs. Massachusetts Department of Transportation et al.; Suffolk Superior Court Docket No. 1984CV01987, Appeals Court Docket No. 2020‐P‐0728, Supreme Judicial Court Docket No. FAR‐28276. 4. State Police Concord vs. Mikhael El‐Bayeh; Woburn District Court Docket No. 1853MV000677, Trial Court Appellate Division Docket No. 18‐ADCI‐148NO, Appeals Court Docket No. 2020‐P‐0700. 5. Mikhael El‐Bayeh vs. Massachusetts Department of Transportation; Suffolk Superior Court Docket No. 2184CV01147. On February 15, 2022, the Office provided a response and withheld certain records pursuant to Exemption (d) of the Public Records Law. Unsatisfied with the Office’s response, Mr. El-Bayeh petitioned this office and this appeal, SPR22/0390, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 Tarrow, Esq. SPR22/0390 Page 2 February 25, 2022 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 agency or 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. The Office’s February 15th Response On February 15, 2022, the Office stated: As you know, the records implicated by your request were created in the context of litigation in which you were and are a party, including the currently pending El-Bayeh v. Sierra et al., C.A. No. 1:21-CV-11674 (D. Mass.) and El-Bayeh v. Mass. Dep’t of Transp. et al., Middlesex C.A. No. 2181CV02077. Please also note that the Office of the Attorney General (AGO) is not involved in State Police Concord vs. Mikhael El‐Bayeh, Woburn District Court Docket No. 1853MV000677, and therefore has no records responsive to this portion of your request … Please be advised that we are withholding the remainder of the records in their entirety pursuant to G.L. c. 4, § 7, cl. 26(d). In a telephone conversation between the Office and a staff attorney with the Public Records Division on February 25, 2022, the Office clarified that the records responsive to Requests #4 and 5 are substantially related to Requests #1 and 2 because the respective cases all arise from similar factual patterns. The cases that are associated with Requests #1 and 2 are involved in active litigation. 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,

Lorraine Tarrow, Esq. SPR22/0390 Page 3 February 25, 2022 administrative hearings or mediation. This office confirmed that the cases remain as active litigation. See El-Bayeh v. Sierra et al., C.A. No. 1:21-CV-11674 (D. Mass.); El-Bayeh v. Mass. Dep’t of Transp. et al., Middlesex C.A. No. 2181CV02077. In light of the related active litigation, I decline to opine on Mr. El- Bayeh’s appeal at this time. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. El-Bayeh 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, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mikhael El-Bayeh