The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth

Public Records Division Shawn A. Williams Supervisor of Records

Ms. Rachel M. Brown, Esq. City of Lowell - Law Defartment 3 7 5 Merrimack Street, 3 r Floor Lowell, MA 01852

Dear Attorney Brown:

April15, 2015 SPRlS/099

I have received the petition of Andrew Quemere of The Bay State Examiner appealing the response of the City of Lowell- Law Department (Department) to his request for public records. G. L. c. 66 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Quemere requested documents concerning the disciplinary hearing of specifically identified individual. You denied his request in your written response, claiming that the responsive records are exempt from disclosure pursuant to Exemption (d) because they concern ongoing litigation. G. L. c. 4, 7(26)(d).

The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 1 0( c); 950 C.M.R. 32.08( 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 town 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, 1 0( c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, the statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 1 0( a).

I find that the Department's response does not contain the specificity required in a denial

OneAshburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Rachel M. Brown Page Two April15, 2015

SPR15/099

of access to public records. Accordingly, I advise the Department that to comply with the Public Records Law and Regulations the Department must provide specificity with respect to any denial of access to public records. This requires a records custodian to cite an exemption, and specifically explain the applicability of the exemption to the requested records. Your denial does not contain a case citation or docket number identifying the ongoing litigation. While the Department's response cites Lafferty v. Martha's Vineyard Comm'n, 2004 Mass. Super. LEXIS 107 (Mass. Super. Ct. Apr. 9, 2004), it does not explain how the requested records are related to the subject matter of the ongoing litigation and policy positions being developed by the Department.

Accordingly, the Department is hereby ordered, within ten (10) day ofthis order, to provide Mr. Quemere with the requested records. If the Department maintains that any portion ofthe responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Quemere a written explanation, with specificity, how a particular emption applies to each record.

s,

Supervisor ofRecords

cc: Mr. Andrew Quemere