Bryan J. Kerman Jr., Esq. v. Lawrence, City of - Office of the City Clerk (SPR 20253049)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 30, 2025 SPR25/3049 Eileen O’Connor Bernal City Clerk City of Lawrence 200 Common Street, Room 107 Lawrence, MA 01840 Dear Ms. O’Connor Bernal: I have received the petition of Bryan Kerman Jr., Esq. appealing the response of the City of Lawrence (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2025, Attorney Kerman requested video footage for incident number 25004381. The City responded on August 18, 2025, and assigned reference number 2025-FOIA- 1036 to this request. Unsatisfied with the City’s response, Attorney Kerman petitioned this office, and this appeal, SPR25/3049, was opened as a result. Subsequent to the opening of this appeal, the City provided a further response on October 21, 2025. Status of the Requestor In his appeal petition, Attorney Kerman states the following: I am aware the videos are related to an active criminal case; after all, I represent Mr. Garcia in that very case. If that were somehow not enough to warrant disclosure, the purported reason for withholding the requested videos, that disclosure is exempted under §7(26)(f) also cannot be justified. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Kerman’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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

Eileen O’Connor Bernal SPR25/3049 Page 2 October 30, 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. The City’s August 18th and October 21st Response In its August 18, 2025 response, the City states that “this is an active criminal case.” In its October 21, 2025 response, the City further explains the following: In response to your records request from the Lawrence police Department pursuant to 2025-FOIA-1036. The report is attached to an open case (Dkt #2518CR002861B) in the Lawrence District Court and protected from release as materials pertaining to on-going investigations or prosecutions in accordance with the following statute. (G.L. c. 4, § 7(26)(f). Any release of this report to any other person other than the victim is done through the district court associated with this case. (Lawrence District Court) or your lawyer. 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 docket of the trial court and verified that the requested records are the subject of active and ongoing litigation in Lawrence District Court. See

Eileen O’Connor Bernal SPR25/3049 Page 3 October 30, 2025 Commonwealth v. Hector Luis Garcia, Jr., (Lawrence District Court Docket No. 2518-CR- 002861) (September 18, 2025). 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). Additionally, I decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. 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: Bryan Kerman Jr., Esq.