Ryan Kath v. Brockton, City of - Law Department (SPR 20221196)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2022 SPR22/1196 Allison M. Cogliano, Esq. Assistant City Solicitor 45 School Street - City Hall Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Ryan Kath of NBC Boston appealing the response of the City of Brockton (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 17, 2022, Mr. Kath requested the following records: “[a]ll records for a crash involving former police … which occurred on [identified date] … on Route 24.” On April 1, 2022, Mr. Kath modified his request for “…. all emails sent/received from the following [named] employees and … all emails from [named person] … to the mayor’s office regarding his retirement/resignation from the department.” Further, Mr. Kath requested the following records: • Call records from [named person] … city-issued cell phone from May 15, 2021 thru May 17, 2021 • All text messages sent and received on [named person] … city-issued cell phone from May 15, 2021 thru May 17, 2021. Previous Appeal This request was the subject of a previous appeal. See SPR22/0812 Determination of the Supervisor of Records (April 26, 2022). The City responded on May 9, 2022. Unsatisfied with the response, Mr. Kath petitioned this office and this appeal, SPR22/1196, 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Allison M. Cogliano, Esq. SPR22/1196 Page 2 June 3, 2022 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 City’s May 9th response In its May 9th response, the City asserted that “… this is an ongoing administrative proceeding before Wrentham District Court, docket no. 2157AC002188.” 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 a conversation between a City representative and a senior attorney of the Public Records Division, the City confirmed that the matter is currently pending before the Wrentham District Court. See Sean Sheridan v. Chief Emanuel Gomes Docket No. 2157AC002188 and that the proceedings are related to the requested records. In light of the pending matter, 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Kath