Gina Plata-Nino v. Department of Housing & Community Development (SPR 20200792)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2020 SPR20/0791; SPR20/0792 Adrian Walleigh, Esq. Counsel, Records Access Officer Dept. Housing and Community Development 100 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Walleigh: I have received the petition of Attorney Gina Plata-Nino of Central West Justice Center appealing the response of the Department Housing and Community Development (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 28, 2019 and November 19, 2019, Attorney Plata-Nino requested several categories of records related to the Department’s Emergency Assistance (EA) appeal hearing processes. The Department responded on February 14, 2020, denying the request on the grounds that the requested records are the subject of pending litigation. Unsatisfied with this response, Attorney Plata-Nino petitioned this office and these appeals, SPR 20/0791 and 20/0792, were 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, § 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, § 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, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Adrian Walleigh, Esq. SPR20/0791; SPR20/0792 Page 2 June 1, 2020 Current Appeal In its February 14, 2020 response, the Department indicates that it is denying a portion of the requested records because they relate to pending litigation. 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. In a February 14, 2020 email, the Department states that the requested records “are clearly related to the litigation filed by Central West Justice Center in Franklin Housing Court (Jane Doe v. DHCD, No. 19-CV-406). The lawsuit was filed in June of 2019, and a few months later CWJC requested records related to the same subject matter as the lawsuit.” The Department additionally states that “in January 2020, CWJC filed its first set of interrogatories in the lawsuit requesting some of the same information sought in the previous public records request.” In her appeal petition, Attorney Plata-Nino argues that “the mentioned litigation constitutes a different set of facts and time period not covered or adjacent to the records request.” She further explains that “[t]he legal action cited by DHCD as a reason to deny the request stems from an incident that took place on October 10, 2018, several months prior to the requested materials.” Although the Department’s response indicates that the requested records are related to active litigation, based on Attorney Plata-Nino’s appeal petition, it is unclear if the requested records are the subject of dispute in the cited litigation. See 950 C.M.R. 32.08(2)(b). It is further unclear whether Attorney Plata-Nino has a unique right of access to any of the responsive records. See 950 C.M.R. 32.06(1)(g). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide a response to Attorney Plata-Nino in a manner consistent with this order, the Public Records Law, and its Regulations as soon as

Adrian Walleigh, Esq. SPR20/0791; SPR20/0792 Page 3 June 1, 2020 practicable. A copy of 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Gina Plata-Nino, Esq., Central West Justice Center