Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20212447)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 7, 2021 SPR21/2447 Seth Thomas Aitken, Esq. Assistant Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Aiken: I have received the petition of Colin 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.” Previous appeal This request was the subject of a previous appeal. See SPR21/2161 Determination of the Supervisor of Records (September 8, 2021). On September 21, 2021, the City provided a response. Unsatisfied with the response, Mr. Dias petitioned this office and this appeal, SPR21/2447, 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. 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

Seth Thomas Aiken, Esq. SPR21/2447 Page 2 October 7, 2021 The City’s September 21, 2021 response In its September 21st response, the City stated, “… there are no public records on the phone that are responsive to this request.” Current appeal In his appeal, Mr. Dias asserted, “[i]n the city’s updated response, the city claims that there are no public records available as they claim the Mayors phone has not been used to conduct city business. I heavily refute this. I have made a previous records request on 7/26/21 (see attached) with the city for text message records on the same cell phone. The city provided me with records of text messages on the Mayors phone that clearly show that the Mayor engages in City related business using that phone on a regular basis.” In a conversation between a Public Records Division staff attorney and an Office representative, it is my understanding that the City confirmed that any responsive records were produced as a result of an earlier request and there are no additional records responsive to the request. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Dias is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G.L. c. 66 §10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Colin Dias