Elan Pavlov v. Cambridge, City of - Office of the City Solicitor (SPR 20232103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2023 SPR23/2103 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 Elan Pavlov 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 August 22, 2023, Mr. Pavlov requested, “all emails sent or received by [a named individual] and [a named individual] … on their municipal email accounts … between Nov 1st 2019 and Feb 25th 2020 … in particular, please provide me with the email sent from [a named individual] to [a named individual] on or about ‘Wednesday, November 27, 2019 5:00 PM.’” The City provided a response on September 5, 2023. Unsatisfied with the response, Mr. Pavlov petitioned this office and this appeal, SPR23/2103, 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, 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 SPR23/2103 Page 2 September 19, 2023 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. 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, Mr. Pavlov’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The City’s September 5th Response In its September 5, 2023 response, the City cited Exemption (d) of the Public Records Law and active litigation to withhold information. 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 Evan Pavlov v. City of Cambridge, Dave Power and Anthony Tuccinardi, Middlesex Superior Court, Docket No. 2281CV04149. In a letter to this office dated September 6, 2023, the City stated: This litigation involves allegations regarding the conduct of inspections by the City’s Inspectional Services Department (“ISD”), including by [named individuals]. Requestor is the pro se plaintiff in the Pending Litigation. The City and [named individuals] are named defendants in the Pending Litigation. The emails requested are from days, November 25-27, 2019, that Requestor alleges the defendants engaged in tortious behavior for which he seeks redress.

Seah Levy SPR23/2103 Page 3 September 19, 2023 The City further stated: [T]he requested emails involved the subject matter that is directly involved in the Pending Litigation. Furthermore, the City and [named individuals] moved to stay all discovery in the Superior Court action. The Middlesex Superior Court allowed the motion and stayed all discovery. The Discovery Stay Order supports a denial of this appeal; whereas, granting the appeal would allow Requestor to make an unwarranted end run around a court order staying discovery. This office has reviewed the court docket and verified that the civil litigation, Evan Pavlov v. City of Cambridge, Dave Power and Anthony Tuccinardi, is still active and ongoing in the Middlesex Superior Court. See Evan Pavlov v. City of Cambridge, Dave Power and Anthony Tuccinardi (Middlesex Superior Court, Docket No. 2281CV04149). Conclusion 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 (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: Elan Pavlov