Todd Wallack v. Cambridge, City of - Office of the City Solicitor (SPR 20240785)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0785 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Todd Wallack, of WBUR, 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 January 11, 2024, Mr. Wallack requested, “[a]ny applications for criminal complaints for sexual conduct for a fee filed with Cambridge District Court since Nov. 1, 2023 and referenced in the US District Attorney statement on Dec. 19, 2023. The statement says there are 28 such documents.” Prior Appeals The requested records were the subject of prior appeals. See SPR24/0241 Determination of the Supervisor of Records (February 7, 2024) and SPR24/0540 Determination of the Supervisor of Records (March 5, 2024). In my March 5th determination, I found that the City did not meet its burden to withhold the requested records pursuant to Exemptions (a) and (f) of the Public Records Law. The City responded on March 13, 2024. Unsatisfied with the City’s response, Mr. Wallack petitioned this office and this appeal, SPR24/0785, 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). 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 SPR24/0785 Page 2 March 28, 2024 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). 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 13th Response In its March 13, 2024 response, the City cited Exemptions (a), (c) and (f) of the Public Records Law, and also cited the pending litigation, Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court, docket SJC-13551. In its response, the City advised, “[o]n February 8, 2024, the Supreme Judicial Court entered the appeal onto the docket of the full Court. See, Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court, docket SJC-13551, Docket entry #1.” 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. 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). I further decline to opine on the applicability of Exemptions (a), (c) and (f) 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: Todd Wallack