Joan Pickett v. Cambridge, City of - Law Department (SPR 20230439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2023 SPR23/0439 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 Joan Pickett 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 February 13, 2023, Ms. Pickett requested: [1] Copies of all applications without name or address submitted to the City to become a member of the Traffic Board, [2] A copy of the criteria used to select applicants to be interviewed, and [3] Copies of all applications without name or address that were selected to be interviewed for the Board. The City responded on February 28, 2023. Unsatisfied with the response, Ms. Pickett petitioned this office and this appeal, SPR23/0439, 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 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 SPR23/0439 Page 2 March 20, 2023 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). 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 February 28th Response In its February 28, 2023 response, the City cited Exemptions (c) and (d) of the Public Records Law to withhold the records, and indicated that the records were related to an active litigation. In an email dated March 17, 2023, a representative from the City informed a staff member of the Public Records Division of the following: [named individual], is a named plaintiff in the matter of Cambridge Streets for All, et. al. v. City of Cambridge, Middlesex Superior Court Docket Number 2281CV02441. Litigation in the case remains ongoing. The information [named individual] requested relates to claims asserted by the Plaintiffs against the City in this matter. Plaintiffs allege that the City’s construction of bike lanes on its public ways through the Cycling Safety Ordinance violated St. 1961, c. 455, sec. 2 and G.L. c. 40, sec. 53. Several of the Plaintiffs’ claims revolve around the City’s Traffic Board created under St. 1961, c. 455, sec. 2. [Named individual]’s public records request for Traffic Board applicant resumes directly relates to these claims currently being litigated regarding the board’s alleged authority, or lack thereof. As such, the City denied [named individual]’s request. Additionally, the City also denied the request pursuant to G. L. c. § 7(26)(c) in order to protect the privacy of individuals and to protect confidential personnel records relating to the City’s hiring or appointment process. Current Appeal In her appeal, Ms. Pickett states, “[t]he request was denied under… attorney client privilege or work product in an ongoing lawsuit as stated in the attached letter denying the records request. Whether or not there is a lawsuit pending, the positions were filled in the ordinary course of municipal business, not created in anticipation of a lawsuit…”

Seah Levy SPR23/0439 Page 3 March 20, 2023 Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Ms. Pickett’s interest in obtaining the records shall have no bearing on the public nature of the records. Active 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 light of the ongoing litigation, 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 Exemptions (c) and (d) of the Public Records Law to withhold the 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: Joan Pickett