Dino Shapiro v. Brockton, City of (SPR 20221213)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 7, 2022 SPR22/1213 Allison M. Cogliano, Esq. Assistant City Solicitor City of Brockton – Law Department 45 School Street – City Hall Brockton, MA 02301 Dear Attorney Cogliano: I have received the petition of Dino Shapiro appealing the response of the City of Brockton (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 4, 2022, Mr. Shapiro requested the following records: [1] All documents, communications, notices, meeting minutes of any and all meetings, including with third parties about the property at [identified addresses], from or with any department within the City[;] [2] Minutes of the quality of life meetings or any other type meetings that have occurred for the last six (6) months. The City responded on May 18, 2022. Unsatisfied with the response, Mr. Shapiro petitioned this office and this appeal, SPR22/1213, 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 agency or municipality 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

Allison M. Cogliano, Esq. SPR22/1213 Page 2 June 7, 2022 The City’s May 18th response In its May 18th response, the City indicated that it would need an additional 15 days to complete the response. See G. L. c. 66, § 10(b)(vi) (allowing a municipality up to 25 days to provide a response). On May 19th, the City provided some responsive records and indicated that it was continuing to review the requested records. On June 6, 2022, the City advised, “… the request involves a property which is the subject matter of an ongoing court proceeding. Specifically, litigation is ongoing in the Metro South Housing Court under the civil action no. 22H82CV00113.” In a conversation between a City representative and a senior attorney of the Public Records Division, the City confirmed that the matter is currently pending before the Metro South Housing Court and that the proceedings are related to the requested records. See City of Brockton Health Dept. v. Ricci, Phillip, Civil Action No. 22H82CV00113. Pending litigation 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 light of the pending matter, I decline to opine on this matter 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: Dino Shapiro