Amy Goebel v. Cambridge, City of - Office of the City Clerk (SPR 20230037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 24, 2023 SPR23/0037 Seah Levy Records Access Officer City of Cambridge, Law Department City Hall 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). On November 29, 2022, Ms. Goebel requested “…copies of any and all records evidencing the costs of implementing road configuration changes at the intersection of Brattle Street, Craigie Street and Sparks Street, including, but not limited to, consultant costs, contractor fees, site preparation, line, painting, signage, etc…[.]” The City provided a response on December 13, 2022. Unsatisfied with the City’s response, Ms. Goebel petitioned this office and this appeal, SPR23/0037, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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 SPR23/0037 Page 2 January 24, 2023 The City’s December 13th Response In its December 13, 2022 response, the City stated that it was “…denying your request for these records as they are exempt from production pursuant to G. L. c. 4 § 7(26)(d) of the Public Records Law which protects records which are the subject of ongoing internal policy deliberations within an agency. These records are the subject of ongoing litigation in the matter of Cambridge Safety for All, et. al. v. City of Cambridge.” 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 an email dated January 23, 2023, a City representative advised a staff attorney of the Public Records Division that “…the records request[] in the . . . appeal relate to ongoing litigation the City is involved with, specifically the matter of Cambridge Streets for All, et. al. v. City of Cambridge, Docket No. 2281CV02441, currently before the Middlesex Superior Court.” 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). I therefore decline to opine on the applicability of Exemption (d) of the Public Records Law to the requested records. 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: Amy Goebel