Brendan Hickey v. Cambridge, City of - Office of the City Clerk (SPR 20252172)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2025 SPR25/2172 Seah Levy Public Records Access Officer Law Department City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Brendan Hickey 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 July 18, 2025, Mr. Hickey requested “[a]ny settlement agreement pertaining to Lubavitch of Cambridge, Inc. v. Cambridge Board of Zoning Appeal (1:24-cv-12403).” The City responded on July 22, 2025. Unsatisfied with the City’s response, Mr. Hickey petitioned this office and this appeal, SPR25/2172, was opened as a result. Subsequent to the opening of this appeal, the City provided a supplemental response on August 4, 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. 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 SPR25/2172 Page 2 August 5, 2025 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 July 22nd Response In its July 22, 2025 response, the City withheld the responsive record in its entirety pursuant to Exemption (d) of the Public Records Law. Current Appeal In his July 30, 2025 petition to this office, Mr. Hickey objected to the City’s withholding of the responsive record under Exemption (d), on the grounds that the responsive record was reasonably complete. In its August 4, 2025 response, the City stated: The subject matter to which the Requestor is currently seeking a settlement agreement relates to Lubavitch of Cambridge, Inc. v. Cambridge Board of Zonin[g] Appeal and the City of Cambridge, pending in the United States District Court of Massachusetts, Docket No. 1:24-cv-12403. The subject litigation is still ongoing and the parties have not yet finalized a settlement agreement. The City of Cambridge is a named Defendant in the action. For this reason, the City maintains that exemption (d) is appropriate … The Requestor’s claim that the settlement document sought is “reasonably completed,” is inaccurate. This office has reviewed the docket of the United States District Court for the District of Massachusetts and confirmed that the requested records are the subject of active and ongoing litigation. See Lubavitch of Cambridge, Inc. v. Cambridge Board of Zoning Appeal (Docket No. 1:24-cv-12403). 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 litigation, 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 Exemption (d) 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).

Seah Levy SPR25/2172 Page 3 August 5, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Brendan Hickey Diane O. Pires, Esq.