The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth

Public Records Division
Shawn A. Williams
Supervisor ofRecords

December 11, 20 14
SPR14/402
Ms. Kathleen E. Degnan, Esq.
Pittsfield City Solicitor
City Hall
70 Allen Street, Room 200
Pittsfield, MA 01201
Dear City Solicitor Degnan:
This office has received your request for reconsideration of my prior decision regarding a
previously closed public records appeal. See SPR14/402 Determination of the Supervisor of
Records (July 25, 2014). I held that the City of Pittsfield (City) failed to satisfy its burden of
specificity in responding to a public records request made by Joe Durwin, Pittsfield
Correspondent for Boxcar Media, Inc. Mr. Durwin requested copies ofrecords related to a
complaint under investigation by the City's Human Rights Commission (HRC). I ordered the
City to provide copies of unredacted responsive records or provide a detailed explanation as to
the City's exemption claim.

The City's Compliance with Administrative Orders

In a September 3, 2014 letter to this office you complied with my original order,
choosing to provide additional information to support the City's exemption claim. In an October
20, 2014letter responding to a second order that was issued by this office, you provided
unredacted copies of responsive records in order for this office to conduct an in camera review to
determine the applicability of the Department's Exemption (f) claim. I wish to thank you, the
City and the HRC for this cooperation.
In a letter that accompanied the in camera materials you identified records that the HRC
believes are not exempt from disclosure. Accordingly, I will consider this portion of the appeal
closed with the proviso that the sections of records deemed public are provided to Mr. Durwin
within ten (1 0) days.
OneAshburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832 Fax (617) 727-5914
www.sec.state.ma. us/ pre

Ms. Kathleen E. Degnan, Esq.

Page Two
December 11, 2014

SPR14/402

TheHRC
To assist in my review, you also provided information from the Pittsfield City Code
(Code) that establishes the HRC, the body that is withholding the responsive records. See
Article XXVII of Chapter 2 ofthe Code. As you explained in a September 29, 2014 telephone
conversation, the purpose of the HRC is to investigate complaints of discrimination and other
denials of equal access. Sec. 2-141(1).
In the September 29th conversation, you explained that the withheld records consist of
materials related to a current investigation by a non-quorum subcommittee of the HRC. See Sec.
2-141 (6). You further explained that once the subcommittee concludes its investigation it will
present its findings in a written report that will be made available to the public. See Sec. 2141(3).

Exemption (f)
Whereas the HRC's investigation remains ongoing, it is withholding certain responsive
records pursuant to Exemption (f) of the Public Records Law. This exemption applies to:
investigatory materials necessarily compiled out of the public view by law
enforcement or other investigatory officials the disclosure of which materials
would probably so prejudice the possibility of effective law enforcement that such
disclosure would not be in the public interest
G. L. c. 4, 7(26)(f)
Exemption (f) may be used by investigative officials if the disclosure of records could
have an adverse effect on an effective law enforcement investigation. WBZ-TV 4 v. District
Attorney for the Suffolk Dist., 408 Mass. 595, 603 (1990).
In your letter you argue that disclosure of these documents prior to the conclusion of the
HRC investigation could adversely affect "the HRC's ability to conduct a fair and thorough
investigation" into the complainant's claim, "meaning that publication of the investigative
material may put public pressure on the HRC to resolve [the complainant's] complaint in such a
way that is not consistent with the purpose of the HRC as stated in the city's by-law."
It appears that many months have passed since this complaint was filed, and no
information was provided to this office by you, the City or the HRC to indicate that any
investigation is active at this time. See "Discrimination claim against Mayor Bianchi tabled until
status of federal, state complaints learned," by Jim Therrien, Berkshire Eagle
(berkshireeagle.com/news/ci_25976768/ discrimination-claim-against-mayor-bianchi-tabled-

Ms. Kathleen E. Degnan, Esq.

Page Three
December 11, 2014

SPR14/402

woman-also), accessed December 2, 2014. Subsequent to a call placed to your office on

December 2, 20 14 to determine the active status of the investigation you provided additional
documentation indicating that the HRC will dismiss the matter if the complainant fails to respond
by late December 2014.
The Massachusetts courts have found that even in a murder investigation a lapse of time
with no active investigatory activities could act to erode entitlement to withholding of
information under the investigatory exemption. See Rafuse v. Stryker, 61 Mass. App. Ct. 595
(2004) (appellate review denied 442 Mass. 1112 (2004)).
Accordingly, whereas it appears from the in camera review and review of other
documentary material that there is no ongoing investigation, I find the City may no longer
withhold the responsive records pursuant to Exemption (f) of the Public Records Law. The City
and the HRC are hereby ordered to provide the responsive records to Mr. Durwin in a manner
consistent with this order, the Public Records Law and its Acce s Regulations. This appeal
remains closed.

illiams

cc: Mr. Joe Durwin