Joanna Novak v. Needham, Town of (SPR 20222274)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 24, 2022 SPR22/2274 Kathryn Copley Department Records Access Officer Building Design & Construction Department Town of Needham 1471 Highland Avenue Needham, MA 02492 Dear Ms. Copley: I have received the petition of Joanna Novak, Esq. appealing the response of the Town of Needham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2022, Attorney Novak requested numerous records regarding the Town and a named construction firm. On August 23, 2022, the Town responded. Unsatisfied with the Town’s response, Attorney Novak petitioned this office and this appeal, SPR22/2274, 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. Att’y 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

Kathryn Copley SPR22/2274 Page 2 October 24, 2022 If there are any fees associated with a response, a written good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town’s August 23rd response In the Town’s August 23, 2022 response, the Town stated that “[a]ll of the documents that you have requested concern Commonwealth of Massachusetts et. al. v. Tresca Brothers Concrete, Sand and Gravel, Inc., Suffolk Superior Court Docket No. 17- 2608H.” 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. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the requested records that is the subject of Attorney Novak’s request, is still active and ongoing in Suffolk Superior Court. See Commonwealth of Massachusetts et. al. v. Tresca Brothers Concrete, Sand and Gravel, Inc. (Docket No. 1784CV02608). Although this case is currently pending it is unclear if the requested records are related to the pending litigation. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Attorney Novak with a response to the request in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Manza Arthur Supervisor of Records cc: Joanna Novak, Esq. Christopher H. Heep, Esq.