Mitchell I. Greenwald, Esq. v. Otis, Town of (SPR 20190102)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2019 SPR19/102 Jeremia Pollard, Esq. Hannon Lerner P.C. 184 Main Street Lee, MA 01238 Dear Attorney Pollard: I have received the petition of Mitchell I. Greenwald, Esq. appealing the response of the Town of Otis (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 20, 2018 Attorney Greenwald requested 4 categories of records related to an identified individual. The Town responded on December 28, 2018 and Attorney Greenwald 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, § IOA(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. Appeal 1 The Town's December 28 h response referenced 950 C.M.R. 32.08(2)(b) which provides the following: 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

Jeremia Pollard, Esq. SPR19/102 Page 2 February 1, 2019 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. The Town also provided a fee estimate for the production of records and asserted" ... due to leave by current employees, 1 would request a continuance to respond to your public records request for 30 days from the date of this letter, whereupon I can provide a more definite estimate, if and when available staff returns." In his appeal petition Attorney Greenwald objects to the fee estimate and notes "[t]he fees set out by the Town are grossly excessive, as are the time estimates. Most of the documents, as stated, are open meeting minutes, which are supposed to be 'readily available."' He also objects to the reference to 950 C.M.R. 32.08(2)(b) and indicates "[a]lthough I am not required to state the purpose of the request, I can share with you that the records request relate to pending litigation (Town Counsel was aware of this)." Subsequent to the opening of this appeal, the Town provided this office a supplemental response dated January 28, 2019. In this response you indicate "[p]lease be advised that Attorney Greenwald has requested discovery through the civil rules of procedure, attached, in connection with this case. Accordingly, we respectfully request that the Supervisor deny the appeal based on 950 CMR 32.08(2)(b) , as there is active litigation between the parties and indeed, discovery requests covering the same material." You included a copy of "Plaintiff's First Request for Production of Documents from Defendant" from Attorney Greenwald dated January 16, 2019. Whereas the requested records are the subject of dispute in active litigation, and in particular the subject of a discovery request, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); Roberta J. Sarnacki v. Town of Otis, Berkshire Superior Court, Civil Action No. 1876CV00275. 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)(l). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mitchell I. Greenwald, Esq.