Amy Goebel v. Cambridge, City of - Office of the City Clerk (SPR 20222781)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2022 SPR22/2781 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 Amy Goebel 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). Following earlier correspondence with the City, on August 8, 2022, Ms. Goebel requested: Any traffic studies, reports, emails, texts, memos, meeting minutes, or other notes with respect to: (i) the history of incidents, accidents, injuries, etc. occurring at the Craigie/Brattle/Sparks intersection, and (ii) the proposed traffic calming changes at the Craigie/Brattle/Sparks intersection, most notably changing the one-way entrance to Craigie Street into a two-way entrance and exit. The City responded on August 24, 2022, referring to numerous responsive records it previously provided, and stating that it was withholding others pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). Following further correspondence, the City again responded on October 12, 2022, providing a hyperlink to records responsive to Item 1 of the request, and again citing Exemption (d) of the Public Records Law, and indicating that the records responsive to Item 2 of the request are the subject of ongoing litigation. Unsatisfied with the City’s response, Ms. Goebel 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 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 SPR22/2781 Page 2 December 19, 2022 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 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. The City’s October 12th Response With regard to Item 1, in its October 12, 2022 response, the City provides Ms. Goebel with a link to a presentation slide entitled “Crash History.” With regard to Item 2, the City states that “these records are the subject of ongoing 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: 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 Item 2 of this request are the subject of civil litigation, currently pending before the Middlesex Superior Court. See Cambridge Streets for All, et. al. v. City of Cambridge (Superior Court Docket No. 2281 CV 02441). Conclusion In light of the active and ongoing litigation, I decline to opine on this matter. See 950 CMR 32.08(2)(b). Please note that a change in the status of any pending litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Accordingly, I will consider this administrative appeal closed.

Seah Levy SPR22/2781 Page 3 December 19, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Amy Goebel