Jeanette Deforge v. City of Chicopee Law Department (SPR 20222301)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 26, 2022 SPR22/2301 Marshall T. Moriarty, Esq. City Solicitor City of Chicopee 17 Springfield Street Chicopee, MA 01013 Dear Attorney Moriarty: I have received the petition of Jeannette DeForge, of MassLive, appealing the response of the City of Chicopee (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 21, 2022, Ms. DeForge requested “. . . all minutes and audio and video recordings of a City Council executive session held on Aug. 2, 2022.” The City responded on September 22, 2022. Unsatisfied with the City’s response, Ms. DeForge petitioned this office and this appeal, SPR22/2301, 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. 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. 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

Marshall T. Moriarty, Esq. SPR22/2301 Page 2 October 26, 2022 The City’s September 22nd response In its September 22, 2022 response, the City cited pending litigation and attorney-client privilege to withhold the requested 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: 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 advised that the matter is currently pending before the Federal District Court. See Neece v City of Chicopee, Docket No. 3:19 cv 30020 and that the requested records are related to the court proceedings. Specifically, the City advised that a “… motion in limine [was filed] to preclude evidence of the audio tape of the April 24, 2018 executive session where the settlement of [a specific] claim was discussed.” Although the City advised that the requested records relate to the pending federal litigation, it is unclear if the litigation relates specifically to the City Council executive session held on August 2, 2022. The City must clarify. Conclusion Accordingly, the City is ordered to provide Ms. DeForge with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us Sincerely, Manza Arthur Supervisor of Records cc: Jeannette DeForge