Harley Racer v. Hopedale, Town of (SPR 20190139)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 4, 2019 SPR19/139 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, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on November 26, 2018 Attorney Racer requested 19 categories ofrecords related to a proposed Urban Renewal Plan (URP). Previous appeal This request was the subject of a previous appeal. See SPRl 8/203 8 Determination of the Supervisor of Records (December 31, 2018). In my December 31st determination I ordered the Town to provide a response to Attorney Racer in a manner consistent with the order, the Public Records Law, and its Regulations. The Town responded on January 14, 2019. Attorney Racer appealed and SPR19/139 was opened as a result. 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, § 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 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. SPR19/139 Page2 February 4, 2019 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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In my December 31st determination I found it was 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). I also found it was 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). I indicated that the Town must provide additional information regarding these issues. In its January 14th response to Attorney Racer the Town asserts" ... your November 26th request is not being considered a request for public records because all of the records sought therein relate directly to the subject matter of a civil Complaint brought by your client against the Town and its officials, which is currently pending in the U.S. District Court. See Philip 0. Shwachman, et al. v. Town of Hopedale, et al, No. 18-CV-40209-TSH." You further note that "[b] ased on the Town's further review of the request, the Complaint and its records, all of the 19 categories of records that you requested on November 26, 2018 are records that directly relate to the subject matter of the Complaint that you filed against the Town, and thus may be sought in a properly framed Request for Production of Documents." The Town references requested categories 1 through 6 and 11 through 14 may be sought " ...t hrough a properly framed Request for Production of Documents in the litigation" and that "[t]he remainder of the purported November 26th request similarly seek records which relate to the Town's development of the draft URP, which is the exact basis for the pending lawsuit. ..." You also explain that " ... as stated in its November 30th response, the Town has already produced records responsive to your November 26, 2018 request in its responses to previous requests by you, dated July 30, 2018, August 2, 2018, September 4, 2018, September 13, 2018, September 21, 2018, November 29, 2018 and December 24, 2018." In his January 19th appeal Attorney Racer indicates "I further request that two additional responses, one from the Hopedale Housing Authority and one from the Hopedale Planning Board, be included and decided with this appeal because each has taken the same position as the Board of Selectmen. The Housing Authority, on January 11, 2019 responded that our December 27, 2018 public records request 'is invalid under 950 C.M.R. 32.06(1)(g).' And by letter dated January 16, 2019 from Matthew Feher, the Planning Board took the same position that, aside from two of the numbered requests, the 'request does not comprise a public records request and the Town is not obligated to respond' due to the civil litigation." The Town provided a supplemental response to the December 2ih request on January 22, 2019.

Matthew G. Feher, Esq. SPR19/139 Page 3 February 4, 2019 Pending litigation 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. Whereas the requested records at issue in this appeal relate to the subject matter of the complaint filed against the Town, which, according to the filing, was brought to challenge the substantive actions and decisions leading to the Urban Renewal Plan, I find these records are the subject of dispute in active litigation. Therefore, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); Philip 0. Shwachman, et al. v. Town of Hopedale, et al, No. 18-CV- 40209-TSH." 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) (1 ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Harley C. Racer, Esq.