Stephen Superba v. Holyoke, City of - City Clerk (SPR 20242591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 30, 2024 SPR24/2591 Kathleen E. Degnan, Esq. Assistant City Solicitor City of Holyoke City Hall Annex 20 Korean Veterans Plaza Holyoke, MA 01040 Dear Attorney Degnan: I have received the petition of Stephen R. Superba appealing the response of the City of Holyoke (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2024, Mr. Superba requested the following: [T]he report on the sexual harassment situation that came to light on March 29, 2023 involving [a specified police officer] and an unnamed victim. I am also requesting the separate investigative report generated as the result of an accusation that [the specified officer] inappropriately accessed Criminal Offender Record Information against an individual. Previous Appeal This request was the subject of a previous appeal. See SPR24/2446 Determination of the Supervisor of Records (September 11, 2024). In my September 11th determination, I found that the City did not meet its burden to redact the responsive records under Exemptions (a), (c), (f) and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(a), (c), (f), (n). Subsequently, the City responded on September 13, 2024. Unsatisfied with the City’s response, Mr. Superba petitioned this office, and this appeal, SPR24/2591, 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 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

Kathleen E. Degnan, Esq. SPR24/2591 Page 2 September 30, 2024 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. 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 September 13th Response In its September 13, 2024 response, the City states the following: [T]he report that [the City] provided to [Mr. Superba] pertained to and contained information directly related to an MCAD litigation which is currently pending. ... Please know that the Docket Number of this case is 23SEM01119 and it is still active. 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 a telephone conversation between the City and this office on September 27, 2024, the City confirmed that an administrative proceeding relating to the record at issue in Mr. Superba’s request is currently pending before the Massachusetts Commission Against Discrimination (MCAD). See [Named Individual] v. City of Holyoke (MCAD Docket No. 23-SEM-01119). In light of the pending administrative 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 the administrative action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Kathleen E. Degnan, Esq. SPR24/2591 Page 3 September 30, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Stephen R. Superba