Harley Racer v. Hopedale, Town of (SPR 20182038)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 31, 2018 SPRlS/2038 Matthew G. Feher, Esq. KP Law, P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Feher: I have received the petition of Harley C. Racer, Esq. of Lurie Friedman LLP, on behalf of Philip Shwachman, appealing the response of the Town of Hopedale (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on November 16, 2018 Attorney Racer requested 19 categories of records related to a proposed urban renewal plan. The Town responded on November 30, 2018 and Attorney Racer appealed. 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, § lOA(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, § 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, § lO(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, § 1 O(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

Matthew G. Feher, Esq. SPR18/2038 Page 2 December 31, 2018 Appeal In the November 30th response sent on behalf of the Town, you assert "[p]lease be advised that this request is not a request for public records pursuant to 950 CMR 32.06(g) due to the ongoing litigation pending in Worcester Superior Court, Philip 0. Shwachman, et al. v. Town of Hopedale, et al., Docket No. 1885 CV 1781D, in which your client is a plaintiff." You reference the language of 950 CMR 32.06(g) and assert "[a]ccordingly, given the ongoing civil litigation between your client and the Town, the Board, Planning Board and others, your request does not comprise a public records request and the Town is not obligated to respond to same under the provisions of the Public Records Law." You also note that "[n ]onetheless, I am informed by the Town that the above requests, which seek communications between the Board and the above-mentioned persons and agencies, and Board communications regarding the proposed Hopedale Draper Falls Urban Renewal Plan, have been provided pursuant to your prior requests ...." Pending litigation 950 C.M.R. 32.06(1 )(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. I find it is unclear whether Attorney Racer has a unique right of access to any of the responsive records that have yet to be provided under 950 C.M.R. 32.06(1)(g). It is also unclear whether the remaining responsive records at issue are "the subjects of disputes in active litigation, administrative hearings or mediation" as described in 950 C.M.R. 32.08(2)(b). The Town must provide additional information regarding these issues. Conclusion Accordingly, the Town is ordered to provide a response to Attorney Racer in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Matthew G. Feher, Esq. SPRlS/2038 Page 3 December 31, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Harley C. Racer, Esq.