Nora J. Chorover, Esq. v. Attleboro, City of - City Solicitor (SPR 20170501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2017 SPR17/501 Lauren C. Galvin, Esq. Murphy, Hesse, Toomey & Lehane, LLP 300 Crown Colony Drive, Suite 410 Quincy, MA 02169 Dear Attorney Galvin: I have received your petition on behalf of the City of Attleboro (City) seeking relief from its obligation to produce responsive records. G. L. c. 66, § lO(c); see also 950 C.M.R. 32.06(4). As required by law, the City furnished a copy of this petition to the requester. G. L. c. 66, § lO(c). Nora Chorover, Esq. submitted two public records requests to the City of Attleboro Department of Wastewater on March 29, 2017. The first request pertains to "Discharge Monitoring Reports," "Pretreatment Permits," and communications regarding Rust-Oleum Corporation. The second request pertains to "Discharge Monitoring Reports," "Pretreatment Permits," and communications regarding Sweet Metal Finishing, Inc. The City is requesting relief from the obligation to provide public records to Attorney Chorover. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; 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

Lauren C. Galvin, Esq. SPRl 7/501 Page 2 April 21, 2017 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66 § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 CMR 36.06(4)(b). Request for relieff rom obligation to produce responsive records In its April 12th petition the City is "requesting relief from the obligation to provide public records to the requestor, on the basis that the requests are part of a series intended to harass private businesses within the City for the purpose of generating revenue by threatening litigation." The City indicates "Ms. Chorover has used public records previously received from the Water Department to threaten litigation and demand that private businesses negotiate with her to avoid being sued under the Clean Water Act." Further, you explain that "[h]er current requests seek further records related to Rust-Oleum and Sweet Metal, two businesses she has threatened to sue using information garnered from her public records request." The City notes that it previously complied with Attorney Chorover' s requests, allowing her to review records in person at the Water Department office. It is the City's position that "Ms. Chorover appears to be using public records to generate business for her law practice and to harass local businesses, which runs contrary to the public policy that underpins the Public Records Law." The City cites Erickson v. Exec. Office of Envtl. Affairs, 2006 Mass. Super LEXIS 476 (Aug. 4, 2006) to support its position. In Erickson, the plaintiff requested dozens of public records from the defendant which the court found to be overly broad and, in some cases, unlimited in time. The plaintiff was also found to be abusive to the Court and its staff as well as harassing to the opposing party. Id. Attorney Chorover's two requests are limited to documents concerning Rust-Oleum Corporation and Sweet Metal Finishing, Inc. and applicable monitoring reports, permits, and communications primarily since June 2016. The City also includes letters from Attorney Chorover on behalf of her client, Clean Water Action, which is identified in the letters as a "non profit citizens' organization working for prevention of pollution in the nation's waters." I find

Lauren C. Galvin, Esq. SPRl 7/501 Page 3 April 21, 2017 the City has not met its burden to establish that Attorney Chorover's requests are frivolous or designed to intimidate or harass in a manner similar to those described in Erickson. Based on the information provided in the April 12th petition and Attorney Chorover's letters included with the petition, I find the City has not met its burden to establish that relief of its obligation to respond to Attorney Chorover's requests is appropriate at this time. See G. L. c. 66 § lO(c). Conclusion Accordingly, I decline to grant the City's request for relief of its obligation to provide public records responsive to Attorney Chorover's requests. However, if the City requires additional time to produce the responsive records, it may submit a petition seeking an extension of time in accordance with G. L. c. 66 § lO(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Nora J. Chorover, Esq.