Eric B. Mack, Esq. v. Fall River, City of - Office of the Corporation Counsel (SPR 20232351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 12, 2023 SPR23/2351 Sergeant Moses Pereira Records Access Officer Fall River Police Department 685 Pleasant Street Fall River, MA 02721 Dear Sergeant Periera: On October 4, 2023, this office received the petition of Attorney Gary P. Howayeck, on behalf of the City of Fall River (City) seeking relief from the obligation to produce responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the City furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In its petition, the City states that “since June 28, 2023, the City of Fall River has received at least six public records requests from Attorney Mack.” Petitions for Relief from the Obligation to provide Public Records Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. 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

Sergeant Moses Pereira SPR23/2351 Page 2 October 12, 2023 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Relief In its petition, the City requests “relief from providing the records sought, and relief from providing any future records to Attorney Mack pertaining to these two officers.” In support of its request, the City argues the following: On or about June 2023, Attorney Eric B. Mack began submitting multiple public records request to the Fall River Police Department and the Bristol County District Attorney’s Office. Said requests pertained to misconduct allegations of two Fall River police officers. These requests have been made in for a commercial purpose, As Attorney Mack is preparing litigation against the City. Since June 28, 2023, the City of Fall River has received at least six public records requests from Attorney Mack, including three just this month. Each request contains multiple sub-requests, and some have been redundant, where he requests information already provided to him from prior requests. To date, since June 28, 2023, he has requested at least thirty categories of documents. Attorney Mack’s requests are for a commercial purpose as they pertain to his anticipated litigation against the City and he is circumventing the intent of the public records law by serving upon the city, in essence, pre-litigation discovery requests. They have negatively impacted the City resources and the ability to respond to other valid requests. Based on the information provided in the City’s petition, I find that the City has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c). Conclusion In light of the above, I cannot grant the City’s petition seeking relief from its obligation to produce responsive records.

Sergeant Moses Pereira SPR23/2351 Page 3 October 12, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Eric Mack, Esq. Gary Howayeck, Esq.