Collin Dias v. Fall River, City of - Office of the City Clerk (SPR 20201508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 10, 2020 SPR20/1508 Alison Bouchard City Clerk Fall River City Clerk’s Office One Government Center Fall River, MA 02722 Dear Ms. Bouchard: I have received the petition of Collin Dias appealing the of the Fall River City Clerk’s Office (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dias requested “any text message or emails by the Mayor or City administrator provided in discovery” in a certain lawsuit. The City provided a response on August 27, 2020, indicating that it does not possess records responsive to the request. Unsatisfied with the City’s response, Mr. Dias petitioned this office and this appeal, SPR 20/1508, was opened as a result. Current Appeal In his appeal petition, Mr. Dias disputes whether the City possesses responsive records, arguing that “the records in question were apart of a huge controversial topic a few years ago in the City of Fall River. There was a major lawsuit in our city.” Mr. Dias further explains that “[t]here was a discovery in such case where the judge ordered our former mayor and city administrator to provide certain text exchanges.” No Duty to Create a Record Under the Public Records Law, a records custodian has no obligation to create a record in response to a public records request. While the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request, it is unclear whether the requested records were ever possessed by the DAO. See G. L. c. 66, § 10(a)(ii). In light of Mr. Dias’ petition, it is unclear whether the City possesses records responsive to this request. The City must provide further explanation regarding whether it possesses such 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

Alison Bouchard SPR20/1508 Page 2 September 10, 2020 records, or has previously. If the City no longer possesses such records, it must demonstrate that they were permissibly destroyed. Conclusion Accordingly, the City is ordered to provide a response to Mr. Dias clarifying whether it possesses responsive records. This response must be made in accordance with this order, the Public Records Law, and its Access Regulation within ten (10) business days. 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: Collin Dias