By DAN VALENTI

PLANET VALENTI News and Commentary

(FORTRESS OF SOLITUDE, MONDAY, DEC. 22, 2014) — Ladies and gentlemen, we’ve got one brewing, a real knee slapper. Once again, The Bianchi Administration has been conked over the noggin (as we used to say on the streets, given “a wood shampoo”) by the Public Records Division of Commonwealth Secretary Bill Galvin‘s office.

THE PLANET‘s elite Z-Agents of the crack Secret Squadron have dug up the evidence from state records. Just think. In the age prior to the Internet, government corruption would be all covered over, nice and quiet, the way The Suits like it. Grimy political hacks and thugs prefer things secret and muddied. Cyberspace has at least made their smeary games a bit more difficult.

Back in July, THE PLANET led coverage into the allegations of racism against Mayor Dan Bianchi filed by a black Medford businesswoman after she claimed hostile treatment from the mayor in a corner office meeting. On July 8, Boxcar Media’s iBerkshires then requested a request for public records in the case. Specifically, iBerkshires’ scribe Joe Durwin requested “all records provided to the Human Rights Commission.”

Kathy Degnan, city solicitor, denied the request for documents. Yeah, we know — stop the presses! Degnan claimed and exemption to the Public Records Law.

Right.

This follows a consistent pattern of secrecy, denial, and obstruction from the mayor who was first elected on a promise of “transparency.”

The Administration ‘Failed’ Citizens Once Again

On Aug. 22, Supervisor of Records Shawn Williams of Secretary of State Bill Galvin‘s office, Public Records Division, notified City Clerk Linda Tyer that the city, Bianchi, and Degnan “failed to satisfy its burden in responding to this records request.” Williams ordered the city, through the clerk’s office, “to provide [iBerkshires] with copies of the responsive records within ten (10) calendar days.”

On Sept. 3, Degnan, acting on order from Bianchi, asked Williams for “reconsideration” of his decision and sent him “additional information to support the City’s exemption claim.” It took Willams’ office three months to decide on Bianchi’s latest attempt to keep We The People in the dark. On Dec. 11, Williams notified Degnan in a letter (paraphasing) “No dice, sister. Fork over the records.”

Williams denied Degnan’s claim that the city couldn’t release the HRC information because it involved an active investigation. The reason was simple. There was no investigation. You can only imagine what the state thinks of the rubes in the Administration. It appears that Degnan, no doubt acting on orders, counted on the state not checking out her claim of an ongoing investigation. Big mistake. Williams’ office checked it out, and found no probe.

Was Degnan misinformed? Was she lying? THE PLANET can’t think of a third possibility.

Williams ordered Degnan to turn over the records to Durwin and iBerkshires “in a manner consistent with this order” and the state’s Public Records Law. That would appear to be within 10 calendar days. If so, Degnan would have had to give Durwin the Christmas present by Dec. 21, yesterday.

Stay tuned to the iBerkshires site to see what it will do with the documents.

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Here are to the letters THE PLANET discussed, the first on Dec. 11 from the Public Records Division of the Secretary of State’s office to Degnan and the second from Aug. 22 from the Public Records Division to Tyer.

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The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth Public Records Division

December 11, 2014

SPR14/402

FROM: Shawn A. Williams Supervisor ofRecords

TO: 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 complaintunderinvestigationbytheCity’sHumanRightsCommission(HRC). Iorderedthe 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/ preMs. Kathleen E. Degnan, Esq. SPR14/402 Page Two December 11, 2014

The HRC

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 o f 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. 2-

141(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-TV4 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 ofthe 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. SPR14/402 Page Three December 11, 2014

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 oftime 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.

Very truly yours,

Shawn A. Williams

Supervisor of Records

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EARLIER LETTER

The Commonwealth of Massachusetts

William Francis Galvin, Secretary of the Commonwealth Public Records Division

Aug. 22, 2014

TO:

Ms. Linda M. Tyer, City Clerk City ofPittsfield 70 Allen Street Pittsfield, MA 01201

Dear Ms. Tyer:

This office has received the petition of Joe Durwin of Boxcar Media, Inc. appealing the response ofthe City ofPittsfield (City) to his request for public records. See G. L. c. 66, § 1O(b); see also 950 C.M.R. 32.08(6). Specifically, Mr. Durwin requested copies of all records provided to the Human Rights Commission.

In a July 8, 2014 email from you, the City stated that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law. In its response, the City merely cited the statutory language of the exemption and provided no further explanation as to its applicability to the requested records. 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 Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995).

It is my finding that the City has failed to satisfy its burden in responding to this records request. The City has provided no specificity with respect to the applicability of the exemption claimed and is not permitted to issue a blanket denial without providing any further information with respect to the requested records.

The City is hereby ordered to provide Mr. Durwin with copies of the responsive records within ten (10) calendar days, or alternatively to provide this office with a more detailed explanation that will satisfy its burden in responding to this request. Accor ingly, this administrative appeal is now closed.

Shawn A. Williams

Supervisor of Records

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The Bianchi Administration is now 3/4 through its four years. What began with such promise has degenerated into the swamp. It will not end well.

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“Stein has aged greatly of late. He feels it himself, and says often that he is ‘preparing to leave all this; preparing to leave …’ while he waves his hand sadly at his butterflies.” — closing lines to Joseph Conrad‘s Lord Jim, (1900).

“OPEN THE WINDOW, AUNT MILLIE.”

LOVE TO ALL.