Scott Graves v. Gardner City Clerk (SPR 20210843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 16, 2021 SPR21/0843 Titi Siriphan City Clerk City of Gardner 95 Pleasant Street Gardner, MA 01440 Dear Clerk Siriphan: I have received the petition of Scott J. Graves, Esq. appealing the response of the City of Gardner (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 19, 2021, Attorney Graves requested numerous documents regarding the condition of the City's drinking water and any aspect of the heating element(s) for any Gardner citizen’s home heating system and any communications provided or sent by a named person regarding these matters. On February 7, 2021, the City responded. Unsatisfied with the City's response, Attorney Graves appealed and SPR21/0843 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, § 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

Titi Siriphan SPR2/0843 Page 2 April 16, 2020 The City’s February 7th response In its response, the City stated, “… the City of Gardner is currently involved in litigation seeking classification as to class action brought by a citizen of Gardner regarding the subject matter of your public records request …” 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 telephone conversation between a City representative and a Public Records Division staff attorney, the City confirmed that the matter is currently pending before the Worcester Superior Court. See Janice Magliacane v. City of Gardner et al., C.A. No. 1785CV02005B. In light of the pending matter, I decline to opine on this appeal at this time. See 950 C.M.R. 32.08(2)(b). 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Scott J. Graves, Esq.