Kenneth J. Rossetti, Esq. v. Executive Office of Technology Services and Security (SPR 20230319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2023 SPR23/0319 Michelle Burwell Records Access Officer Executive Office of Technology Services and Security One Ashburton Place, 8th Floor Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Kenneth J. Rossetti, Esq., from the City of Methuen (City), on behalf of the City’s Police Department (Department) appealing the response of the Executive Office of Technology Services and Security (EOTSS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, the Department requested from EOTSS: In June of 2022, the Stirm Group submitted a public records request to the MPTC requesting emails between staff members at the MPTC and members of the Methuen Police Department among other things. My understanding is those types of requests would be sent to the EOTSS and a secure link would then be sent back to the MPTC to download the found items. Stirm Group submitted that request on our behalf. Would we be able to gain access to the link that was provided to the MPTC in June? Maybe we could receive the data another way? We are specifically looking for the exact emails which were sent at the time in response. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0169 Determination of the Supervisor of Records (February 10, 2023). The Department responded on January 27, 2023. Unsatisfied with the response, the City petitioned this office and this appeal, SPR23/0319, 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

Michelle Burwell SPR23/0319 Page 2 March 3, 2023 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) (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). 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. Current Appeal On February 16, 2023, on behalf of the Department, City Solicitor, Attorney Rossetti petitioned the Supervisor, appealing the EOTSS’ January 27, 2023 response which denied the request for email records under Exemption (f) of the Public Records Law and the common law attorney-client privilege. The EOTSS’ January 27th Response In its January 27, 2023 response the Department cited Exemption (f) of the Public Records Law and attorney-client privilege to withhold the requested records. EOTSS further advised, “EOTSS has received a subpoena from the U. S. District Court for the District of Massachusetts that requires EOTSS to produce a variety of records that appear to include all of those records requested by Captain Ferreira from the Department.” EOTSS also asserted, “EOTSS is currently working with the U.S. Attorney’s Office to comply with this subpoena and will not disclose to the public any records subject to that subpoena until the appropriate investigatory officials indicate to EOTSS that such disclosure is not contrary to the public interest.” 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.

Michelle Burwell SPR23/0319 Page 3 March 3, 2023 In light of the pending matter before the U.S. Attorney’s Office and based upon the subpoena received by EOTSS regarding these records, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemption (f) and attorney-client privilege. 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: Kenneth J. Rossetti, Esq.