Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 31, 2018 SPR18/102 Jessica A. Adler, Esq. Assistant Corporation Counsel Law Department One Government Center Fall River, MA 02722 Dear Attorney Adler: I have received the petition of Collin Dias appealing the response of the Fall River Corporation Counsel (Counsel) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dias requested several categories of records concerning the Fall River Office of Economic Development. After learning of Mr. Dias' administrative appeal, the Counsel contacted this office requesting a denial of his appeal due to active litigation. The Pu-blic Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(d); 950 C.M.R. 32.03(4). "Public records'; is broadly defined to includ~ 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, § IO(b)(iv); 950 C.M.R. 32.06(3); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Jessica A. Adler, Esq. SPR18/102 Page 2 January 31, 2018 Counsel's January 29th response On January 29, 2018, an attorney from the Corporation Counsel's Office contacted this office with notification of the requested records being the subject of disputes in active litigation in New Bedford Superior Court, Docket Number: l 773-CV-00539. According to a representative from the Counsel, "Mr. Dias was supplied with the complaint, answer, and other documents showing the status of litigation surrounding this matter." Whereas the public records in question are the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of the litigation could impact the applicability of950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias