Gardner v. Brockton, City of - Law Department (SPR 20250514)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 7, 2025 SPR25/0514 John P. Fischer, Esq. Assistant City Solicitor Law Department Brockton City Hall 45 School Street Brockton, MA 02301 Dear Attorney Fischer: I have received the petition of Chris Gardner appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 18, 2024, Mr. Gardner requested the following: [C]opies of all communications and related records between [two named individuals]. This includes, but is not limited to: 1. Emails, text messages, and any other written or electronic communications between [the individuals]. This includes communications sent or received using personal devices, private accounts, or any other means of communication, including those made while connected to City Hall’s public Wi-Fi network or other city provided networks. 2. Phone records for any communications made using city-issued phones or other devices connected to public resources. 3. Meeting invitations, agendas, calendar entries, and minutes for any meetings or discussions involving [the individuals]. 4. Documents, memos, or notes that reference or discuss communications, meetings, or interactions between [the individuals]. 5. City of Brockton Records: A copy of the City of Brockton’s Chapter 19, Article 1, Section 19-1 before and after it was amended in 2018. The voting record of [a specified Councilor] on this issue. 6. Contractual Records: A complete copy of 2020 former Police Chief ... contract, including all amendments or supplements. The City responded on January 27, 2025. Unsatisfied with the City’s response, Mr. Gardner petitioned this office, and this appeal, SPR25/0514, was opened as a result. Subsequent 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

John Fischer, Esq. SPR25/0514 Page 2 March 7, 2025 to the opening of this appeal, the City provided a further response to Mr. Gardner and this office on March 5, 2025. 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. 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. Current Appeal In his appeal petition, Mr. Gardner argues the following: I am appealing the denial of my public records request seeking emails, text messages, phone records, documents, memos, and notes concerning [Mayor’s Name] and [City Employee’s Name]. The denial cites 950 CMR 32.08(2)(b) as a basis for withholding these records, claiming they are the subject of active litigation. However, this reasoning is legally flawed and inconsistent with the Massachusetts Public Records Law. [sic] The City’s January 27th and March 5th Responses In its January 27, 2025 response, the City provides records responsive to Item 6 of the request, and provides a hyperlink to records responsive to Item 5 of the request. The City indicates that records responsive to Items 1-4 are the subjects of pending litigation. In its March 5, 2025 response, the City further argues that the records are the subject of pending litigation. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part:

John Fischer, Esq. SPR25/0514 Page 3 March 7, 2025 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 its January 27th response, the City explains the following: With respect to Request Nos. 1-4 the City denies these requests in their entirety and will not be producing any responsive records at this time as these records are the subject of active litigation. See McNulty v. City of Brockton, Mayor Sullivan and Chief Perez, Plymouth Superior Court, Docket No. 2483CV00658. Request Nos. 1-4 involve an active lawsuit[.] In its March 5th response, the City further explains the following: [C]ommunications between the plaintiff and defendant in a whistleblower action pursuant to M.G.L. c. 149 § 185, comprise an essential element of the plaintiff’s case-in-chief. These communications, and the recipients’ responses, are at the heart of the litigation. Complying with the appellant’s requests at this time, may compromise the integrity of the litigants’ claims arguments and defenses, forcing them to hastily produce vital evidence without the advice and consent of counsel. Compliance with the appellant’s request at this juncture would compromise the litigants’ legal arguments, accelerate the normal pace of the exchange of discovery, and violate the litigants’ rights to due process. This office has reviewed the trial court’s docket and verified that civil litigation, relating to the records that are the subject of Mr. Gardner’s request, is active and ongoing in the Massachusetts Superior Court. See Arthur McNulty vs. City of Brockton, et al., (Plymouth Superior Court Docket No. 2483-CV-00658 (Jan. 22, 2025)). 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). Sincerely, Manza Arthur Supervisor of Records cc: Chris Gardner