Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20212161)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 8, 2021 SPR21/2161 Debra Cabral Records Access Officer City of Fall River 417 Rock Street Fall River, MA 02720 Dear Ms. Cabral: I have received the petition of Collin Dias appealing the response of the City of Fall River (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 10, 2021, Mr. Dias requested the following records, “…all text message to and from Mayor … [regarding] [identified] cell phone number [with identified] key words.” On August 16, 2021, the City provided a response. Unsatisfied with the response, Mr. Dias petitioned this office and this appeal, SPR21/2161, 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); 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. The City’s August 16th response On August 16, 2021, the City stated, “… your request violates the Fourth Amendment of the United States Constitution as well as Article 14 of the Massachusetts Declaration of Rights. 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

Debra Cabral SPR21/2161 Page 2 September 8, 2021 You are seeking to use M.G.L. Ch. 66, §10, the Public Records Law, to compel the City, a government entity, to conduct a warrantless search and seizure of a privately owned cell phone. In addition to violating the Mayor’s reasonable expectation of privacy and right to be free from warrantless search and seizure, your request also seeks items that are exempt from a public records request.” The City also asserted, “[t]he storage device for the records you are seeking is the Mayor’s personal cell phone, which is maintained and paid for by the Mayor personally. Messages described in your request include personal messages between the Mayor and his friends or family.” Based on the City’s response, it is unclear if it possesses records responsive to the request. Particularly, I find the City must confirm if the cell phone was used to conduct City business. 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. See G. L. c. 66, § 10(a)(ii). To the extent that the requested records exist, I find the City must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the City is ordered to provide Mr. Dias with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any 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. Mr. Dias may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Collin Dias