Todd Wallack v. Somerville, City of - City Solicitor (SPR 20232809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2023 SPR23/2809 David P. Shapiro, Esq. Deputy City Solicitor City of Somerville Law Department 93 Highland Avenue Somerville, MA 02143 Dear Attorney Shapiro: I have received the petition of Todd Wallack, of WBUR, appealing the response of the City of Somerville (City) to a request for public records. See G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On November 14, 2023, Mr. Wallack requested “[c]opies of all records for residential parking permits under the account names A10318 and A10319 at [a specified address] in Somerville.” The City responded to Mr. Wallack’s request on November 20, 2023. Unsatisfied with the City’s November 20th response, Mr. Wallack petitioned this office and this appeal, SPR23/2809, 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(b)(iv); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

David P. Shapiro, Esq. SPR23/2809 Page 2 December 5, 2023 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. Previous appeals and reconsideration A similar request was the subject of previous appeals and subsequent reconsideration. See SPR14/0626 Determination of the Supervisor of Records (January 6, 2015, March 6, 2015, June 5, 2015, December 2, 2015, February 2, 2016 and May 16, 2016); SPR17/0625 and SPR17/0626 Determinations of the Supervisor of Records (May 8, 2017, June 1, 2017, November 3, 2017, March 12, 2020, May 11, 2022) and SPR20/2161 and SPR20/2182 Determinations of the Supervisor of Records (November 19, 2020, December 10, 2020). In SPR17/0626, Mr. Wallack requested “an electronic copy of the City’s list of residential parking permits.” Mr. Wallack sought “any available columns in the database including the permit number, issue date, expiration date, vehicle model/make/year, license plate number, first name, last name, address, and zip code.” In the March 12th determination, the City was ordered to provide additional information to supplement the factual record, the City declined to do so.Subsequently, based upon the order of Justice Henry in City of Somerville v. Rebecca Murray, as Supervisor of Public Records, Middlesex Superior Court C.A. No. 1581 CV 04911, Memorandum of Decision & Order, December 4, 2019, at 5 (Henry, J.), this office found that the City did not sufficiently meet its burden to withhold the redacted information under Exemption (c). In the May 11th determination, this office was unable to reverse its November 3, 2017 determination. The City’s November 20th Response In its November 20, 2023 response, the City provided records responsive to the public records request with redactions. The City stated that it “... has redacted the first name, last name, phone numbers, email addresses and license plate numbers of the permit holder(s). It is the City’s position that, for the reasons substantially stated in the Brief in Support of Somerville’s Motion for Judgment on the Pleadings attached hereto, which is incorporated by reference, the records may be redacted, pursuant to applicable public records law.” 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. Upon review of the City of Somerville v. Rebecca Murray, as Supervisor of Public

David P. Shapiro, Esq. SPR23/2809 Page 3 December 5, 2023 Records, Middlesex Superior Court, C.A. No. 1581CV0491, I find that the matter is currently pending and that the requested records are related to the proceedings. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). 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: Todd Wallack