Joanna Novak v. Cambridge, City of - Office of the City Solicitor (SPR 20222163)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 5, 2022 SPR22/2163 Seah Levy Public Records Access Officer City of Cambridge Office of the City Solicitor 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Attorney Joanna Novak, of McCormack Suny LLC, appealing the response of the City of Cambridge (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 4, 2022, Attorney Andrea Davulis, also of McCormack Suny LLC, requested “any record that identifies all city-owned construction projects that were built or installed from August 15, 2011 to present that involved the use of ready-mix concrete and later developed problems, including but not limited to spalling, cracking, or crumbling.” Following further correspondence, the City responded on July 28, 2022, citing Exemption (d) of the Public Records Law, and stating that the responsive records are the subject of ongoing litigation. Unsatisfied with the City’s response, Attorney Novak petitioned this office and this appeal, SPR22/2163, 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). 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. Att’y 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 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

Seah Levy SPR22/2163 Page 2 October 5, 2022 or redacted portion of the responsive record. The City’s July 28th Response In its July 28, 2022 response, the City states that “the records referenced in [the] request are the subject [of] ongoing litigation before the Suffolk Superior Court.” The City reiterates its claim in a letter to this office and Attorney Novak on October 3, 2022. 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 the records at issue in this appeal are the subject of civil litigation, which is still active and ongoing in the Suffolk Superior Court. See Commonwealth of Massachusetts, et al. v. Tresca Brothers Concrete Sand and Gravel, Inc., (Superior Court Docket No. 1784CV02608). 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). Sincerely, Manza Arthur Supervisor of Records cc: Joanna Novak, Esq.