Ryan P. Menard v. Worcester, City of - Office of the City Manager (SPR 20181396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 1, 2018 SPRlS/1396 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 Menard, Esq. appealing the response of the City of Worcester (City) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 9, 2018, Attorney Menard requested ten categories ofrecords including communications dated on or after September 28, 2017, between the City and certain named entities pertaining to the Route 20 Sewer Extension Project. Previous appeal; reconsideration This request was the subject of a previous appeal and subsequent reconsideration. See SPR18/932 Determinations of the Supervisor of Records (July 19, 2018 and August 3, 2018). In my August 3rd determination, I indicated that the City should provide a supplemental response explaining how the requested records "are the subject of a dispute in active litigation" and the applicability of Exemption ( d) to withhold responsive records from disclosure. Following the August 3rd determination, the City provided a response on August 17, 2018, discussing the ongoing nature of the related litigation and 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 Menard petitioned this office and this appeal, SPR18/1396, was opened as a result. While this appeal was pending, the City provided a supplemental response on September 28, 2018. The City's August 11h response In its August 17, 2018 response, the City states that the "requested records currently remain the subject of a dispute in active litigation (Revoli Construction Co., Inc. v. City of Worcester, Worcester Superior Court, Docket No. 1785CV01612B). Document requests for the 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

Joshua A. Martunas SPR18/1396 Page 2 October 1, 2018 exact same records have been made as part of the litigation. These records have become the subject of an ongoing dispute before the Court, which has jurisdiction and authority to decide a discovery dispute in the case." The City posits that "[t]he Court's determination that certain documents are not discoverable does not render those documents to be public subject to disclosure ... There has been no change in the status of the litigation. The City anticipates that the requested records will continue to be the subject of dispute as this litigation continues." Whereas the City has demonstrated that the public records in question continue to be a subject of dispute in active litigation, I decline to opine on this matter at this time. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ryan Menard, Esq.