Patrick Higgins v. Fall River, City of - Office of the Corporation Counsel (SPR 20233097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 9, 2024 SPR23/3097 Alan J. Rumsey, Esq. Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Rumsey: I have received the petition of Patrick Higgins appealing the response of the City of Fall River (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 17, 2023, Mr. Higgins requested the following records: 1. Settlement agreement by and between the City of Fall River and [a named individual] 2. Investigative report regarding [a named individual] conducted by [another individual] 3. Memorandum and Judgment of Judge Dupois relating to the Civil Litigation by and between Gannett d/b/a Herald News v City of Fall River Previous Appeal This request was the subject of a previous appeal. See SPR23/2913 Determination of the Supervisor of Records (December 18, 2023). In my December 18th determination, I ordered the City to provide Mr. Higgins with a supplemental response. Subsequently, the City responded on December 22, 2023, citing Exemption (c) of the Public Records Law for redacting a record responsive to Part 2 of the request, and explaining that the record is the subject of pending litigation. Unsatisfied with the City’s response, Mr. Higgins further appealed, and this case 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 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

Alan J. Rumsey, Esq. SPR23/3097 Page 2 January 9, 2024 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. 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. Current Appeal In his appeal petition, Mr. Higgins contends the following: [The City is] stating that they “intend” to appeal but the 30 days appeal deadline has long passed. Second, they are relying on the “privacy exemption” which has already been ruled upon in the Judgment of the Superior Court. See [the] Judgment of the Superior Court on the litigation by and between Gannett (d/b/a Herald News) v City of Fall River where all of these privacy issues have been resolved. The City’s November 20th and December 22nd Responses In its previous November 20, 2023 response, the City provided records responsive to Parts 1 and 3 of the request. The City also provided a copy of a report responsive to Part 2 of the request in redacted form. In its December 22, 2023 response, the City cites Exemption (c) of the Public Records Law for redacting the report responsive to Part 2, and explains that the report is the subject of pending litigation. See G. L. c. 4, § 7(26)(c). Pending Litigation In its December 22nd response, the City explains that “the City of Fall River intends to appeal the order of the Superior Court and will do so after a final judgment is entered. As such, the court matter is still pending despite the City’s production of the above-identified documents.” 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:

Alan J. Rumsey, Esq. SPR23/3097 Page 3 January 9, 2024 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 records that are the subject of Mr. Higgins’ request, is active and ongoing in the Bristol County Superior Court. See Gannett Co., Inc. vs. City of Fall River, (Superior Court Docket No. 2273CV00734 (Oct. 11, 2023)). Conclusion 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). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Patrick Higgins