Christopher P. Loreti v. Arlington, Town of - Clerk's Office (SPR 20241370)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 20, 2024 SPR24/1370 Christine Bongiorno Deputy Town Manager of Operations Records Access Officer Town of Arlington 730 Massachusetts Avenue Arlington, MA 02476 Dear Ms. Bongiorno: I have received the petition of Christopher P. Loreti appealing the response of the Town of Arlington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2024, Mr. Loreti requested the following: [1.] Copy of the recent settlement agreement between [a named individual] and the Town of Arlington [2.] Records of payments to any attorneys (other than Town Counsel) related to this settlement, including payments directly or indirectly to attorneys representing the police officers involved. The Town responded on February 22 and March 5, 2024, and provided records. Unsatisfied with the Town’s response, Mr. Loreti petitioned this office and this appeal was opened. 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

Christine Bongiorno SPR24/1370 Page 2 May 20, 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). 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. 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 Town’s Responses In its February 22, 2024 response, the Town provided records and stated, “[u]pon examination it was determined that portions of certain records contained information that is specifically exempted per applicable law, protected or privileged and therefore subject to redaction in order to prevent the unlawful release of sensitive information.” In its March 5, 2024 response, the Town provided additional records and stated, “[i]n [Mr. Loreti’s] request, [he] also asked for a copy of the settlement agreement which [the Town] sent to [him], and which clearly listed the amount that the Town was required to pay Lawyers for Civil Rights, but for clarity, I am attaching a record of payment made to Lawyers for Civil Rights by the Town of Arlington.” Subsequent to the opening of this appeal, on May 16, 2024, the Town sent additional records and stated the following: [The Town] provided to Mr. Loreti, a record which contained a list of payments to any attorney other than Town Counsel related to this settlement. The list of payments included all payments made to attorneys including those that represented Arlington Police Officers involved in the settlement. To respond to the additional request that Mr. Loreti made in an email to you on 5/6/24, I am now including copies of checks, attached to this email. This portion of his request should now be closed. Also attached to this email is the settlement agreement. The settlement agreement is not a public filing with the court and is subject to a confidentiality agreement with the plaintiff. Releasing the redacted portions of the agreement would be in violation of this confidentiality agreement. The public is entitled to see the amounts paid by the Town which remains visible in the settlement agreement. The redacted portions of the agreement fall under exemption a.

Christine Bongiorno SPR24/1370 Page 3 May 20, 2024 Current appeal In his appeal, Mr. Loreti states, “[t]he settlement agreement the town provided is almost entirely redacted, aside from a couple paragraphs regarding payments to the plaintiff and his attorneys. The town has provided no legal justification for the redactions, as required by the Public Records Law… I am also appealing the town’s response to my request for attorney payment records. As you can see from the records the town provided, they were generated after I made my request. I did not request that any such documents be created. As I explained in my response, I was looking for copies of existing documents at the time I made my request, such as copies of cancelled checks. None were provided. I am also appealing this component of my PRR, because the town completely failed to respond to my specific request for payment records to or on behalf of the attorneys representing the Arlington police officers involved in the settlement. The town provided no responsive documents concerning such payments, nor did it claim it had none…” Additionally, on May 17, 2024, Mr. Loreti responded to the Town’s May 16th email and stated the following: [1.] Regarding the records of payments, [the Town] states that “this portion of his request should now be closed.” I disagree. In my request, I asked for records of any payments to attorneys representing the police officers involved. All of the payment records the town provided, aside from those for the plaintiff, are to Brody, Hardoon, Perkins & Kesten, LLP, which I understand is the law firm that represented the town. I also understand the three police officers involved had a different law firm (or attorney) representing them. So while [the Town] says the records provided include all payments made, none of them indicate any payments to a law firm representing the officers. If this firm were paid through Brody Hardoon, then I would have expected to receive copies of Brody Hardoon invoices showing the billings from the officers’ attorneys (and any markups imposed by Brody Hardoon). With the information provided, it is impossible to separate payments to the law firm representing the town from those to the law firm representing the police officers. If my original records request was insufficiently clear in this regard, please let me know and I will make another. [2.] Whatever confidentiality agreement the town may have in place with the plaintiff is limited by state law. And the town has cited no state law that allows it to withhold virtually the entire settlement agreement. A generic reference to Exemption (a) of the Public Records Law is insufficient and the town’s response is entirely inconsistent with Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184- A (June 14, 2013).

Christine Bongiorno SPR24/1370 Page 4 May 20, 2024 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Based on the Town’s May 16th email, it is unclear what statute the Town is claiming to withhold responsive records. The Town is reminded that for Exemption (a) to apply, the requested record must be “specifically or by necessary implication exempted from disclosure by statute.” G. L. c. 4, § 7(26)(a). Consequently, the Town must state the statute that permits it to withhold the records from disclosure. Additionally, in light of Mr. Loreti’s May 17th email, it is unclear if the Town possesses additional records responsive to part 2 of the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). To the extent that responsive records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Loreti with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Christine Bongiorno SPR24/1370 Page 5 May 20, 2024 within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Christopher P. Loreti