Madeleine Aster v. Cambridge, City of - Office of the City Clerk (SPR 20231830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 22, 2023 SPR23/1830 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. See 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 Appeals This request was the subject of prior appeals. See SPR23/0301 Determination of the Supervisor of Records (March 1, 2023); SPR23/0548 Determination of the Supervisor of Records (April 4, 2023) and SPR23/1155 Determination of the Supervisor of Records (June 15, 2023). In my June 15th determination, it was my understanding that the City intended to provide a supplemental response. The City provided a response on June 29, 2023. Unsatisfied with the response, Ms. Aster petitioned this office and this appeal, SPR23/1860, 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 SPR23/1860 Page 2 August 22, 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 June 29th Response In its June 29, 2023 response, the City cited Exemption (c) of the Public Records Law and active litigation to withhold the requested 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: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation In its response, the City cited Madeleine Aster et. al. v. City of Cambridge, Middlesex Superior Court, Docket No. 2281CV03503 and Cambridge Streets for All et. al. v. City of Cambridge, Middlesex Superior Court, Docket No. 2022-02441, and stated: [P]laintiffs in Madeleine Aster, et. al., allege that the City violated M.G.L. c. 40 § 53 by improperly expending taxpayer funds in the construction of separated bike lanes on the City’s public ways. Among [the] allegations, [plaintiffs] assert that the City’s Traffic Director did not have the proper qualifications to serve in that

Seah Levy SPR23/1860 Page 3 August 22, 2023 position. [Plaintiffs] allege that the City’s Traffic Director was not licensed as any kind of engineer in the Commonwealth of Massachusetts, and was therefore unqualified to implement changes to the roads, including the installation of bike lanes and the removal of parking, consistent with Chapter 455. Allegations have also been raised in oral arguments, other filings, or statements by Plaintiffs that other employees of the City’s Traffic, Parking, and Transportation Department were also not qualified to either serve as Traffic Director, plan and install bike lanes on the City’s public ways, or remove parking spaces in the City’s public ways. Therefore, your public records request regarding the educational qualifications of the staff of the City’s Traffic, Parking, and Transportation Department either directly relate or are in nexus with the ongoing litigation, as the Plaintiffs allege that the City’s Traffic Director is unqualified under Chapter 455 and, by extension, that the other employees of the Traffic, Parking, and Transportation Department also lack the qualifications to serve as Traffic Director. 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 Exemption (c) 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: Madeleine Aster Elliot J. Veloso, Esq.