Madeleine Aster v. Cambridge, City of - Office of the City Solicitor (SPR 20230548)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 4, 2023 SPR23/0548 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 Madeleine Aster 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 2, 2023, Ms. Aster requested, “[a]ll Traffic, Parking, and Transportation Department employees who are certified traffic engineers.” Prior Appeal This request was the subject of a previous appeal. See SPR23/0301 Determination of the Supervisor of Records (March 1, 2023). The City provided a response on March 15, 2023. Unsatisfied with the response, Ms. Aster petitioned this office and this appeal, SPR23/0548, was opened as a result. Status of Requestor 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Aster’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 SPR23/0548 Page 2 April 4, 2023 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). 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 March 15th Response In its March 15, 2023 response, the City cited Exemption (c) of the Public Records law and ongoing litigation to withhold information. Current Appeal In her appeal, Ms. Aster states: Pending litigation has no bearing on my request. The pending litigation is only concerned with whether the director of the Cambridge Traffic Department is a certified traffic engineer, to be in compliance with state law. The director left months ago and we already know that the acting chief is not a traffic engineer… 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: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation

Seah Levy SPR23/0548 Page 3 April 4, 2023 In its response, the City cited Madeleine Aster et. al. v. City of Cambridge, Middlesex Superior Court, Docket No. 2281CV03503, and stated, “…the information you requested in your public records request concerns a claim in your current litigation against the City…. Your request is therefore a request for information directly related to the issues asserted in your complaint that is the subject of ongoing litigation.” Based on Ms. Aster’s petition and the City’s response, it is unclear how the requested records are the subjects of dispute in the pending litigation. Specifically, the City must clarify how this request relates to the litigation. Conclusion Accordingly, the City is ordered to provide Ms. Aster with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Madeleine Aster