Laura H. Ortiz v. Cambridge, City of - Office of the City Clerk (SPR 20241224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2024 SPR24/1224 Seah Levy Public Records Access Officer City of Cambridge, Law Department City Hall, 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Laura H. Ortiz 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 April 4, 2024, Ms. Ortiz requested a “[c]opy of the ‘Applications for complaints’ against the 28 alleged customers that were submitted to Cambridge District Court by a Homeland Security Investigations Task Force Officer with the Cambridge Police Department Timeline: On or near December 18, 2023.” The City responded on April 17, 2024, denying the request, and claiming that the responsive records are the subject of active litigation, and are exempt from disclosure under Exemptions (a), (c) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f). 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

Seah Levy SPR24/1224 Page 2 May 8, 2024 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 April 17th Response In its April 17, 2024 response, the City states the following: All records responsive to the Request (“Requested Records”) are the applications for criminal complaints submitted to the Clerk Magistrate of the Cambridge District Court. The Clerk Magistrate has not yet heard those applications because the proceedings are stayed by the Single Justice of the Supreme Judicial Court. See, Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court, docket SJ- 2024-0018, docket entry #51. The matter before the Supreme Judicial Court is, in part, whether the Requested Records should be available to the public before the clerk magistrate’s hearing on the application for criminal complaints. Because the Requested Records are the subject of the dispute in an active case before the Supreme Judicial Court, these records are the “subjects of dispute in active litigation.” 950 CMR 32.08(2)(b)(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. This office has reviewed the Supreme Judicial Court’s docket and verified that civil litigation, relating to the records that are the subject of Ms. Ortiz’s request, is active and ongoing before the Supreme Judicial Court. See Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court, (Supreme Judicial Court Docket No. SJC-13551 (May 7, 2024)). 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). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Seah Levy SPR24/1224 Page 3 May 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura H. Ortiz