Ryan P. Menard v. Worcester, City of - Office of the City Manager (SPR 20180932)

The Cornrnonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supewisor of Records July 5,2018 SPR181932 Joshua A. Martunas Office of the City Manager City of Worcester 455 Main Street, Room 309 Worcester, MA 01608 Dear Mr. Martunas: I have received the petition of Ryan Mernard, Esq. appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on March 9,2018 , Attorney Mernard requested ten categories of records including communications dated on or after September 28,2017 , between the City and certain named entities pertaining to the Route 20 Sewer Extension Project. On March 26, 201 8, the City provided a response denying access to responsive records pursuant to Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Unsatisfied with the City's response, Attorney Mernard petitioned this office, and this appeal, SPR181932, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a,public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1 976). Accordingly, Attorney Mernard's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Joshua A. Martunas Page 2 July 5,2018 such, Attorney Mernard may wish to consider another means of seeking to obtain any existing responsive records. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, 5 10A(d); 950 C.M.R. 32.03(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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The City's Marclz 26t" response In its March 26,20 18 response, the City asserts that the records are exempt from disclosure at this time under Exemption (d) as they relate to "Revoli Construction Co., Inc. v. City of Worcester, Worcester Superior Court, Docket No. 20 17-1 61 2B." The City cites Lafferty v. Martha's Vineyard Comm'n, No. 03-3397,2004 WL 792712 (Mass. Super. April 9,2004) and DaRosa v. City of New Bedford, 471 Mass. 446 (2015), to support its position. The City asserts that the records "pertain to ongoing and incomplete civil litigation. The City has determined that the requested records are substantially related to said ongoing litigation, and that their release could impact ongoing policy development, litigation strategy, and the litigation process. Accordingly, the requested records are exempt from disclosure." 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) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation"). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Accordingly, this administrative appeal is now closed.

Joshua A. Martunas Page 3 July 5,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan Mernard, Esq.