The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth

Public Records Division
Shawn A. Williams
Supervisor ofRecords

April15, 2015

SPRlS/099
Ms. Rachel M. Brown, Esq.
City of Lowell - Law Defartment
3 7 5 Merrimack Street, 3r Floor
Lowell, MA 01852
Dear Attorney Brown:
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, 10( 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, 10( 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, 10(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