Patrick Higgins v. Fall River, City of - Housing Authority (SPR 20241666)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 17, 2024 SPR24/1666; SPR24/1667 Michael J. Sousa, Esq. General Counsel Fall River Housing Authority 85 Morgan Street Fall River, MA 02721 Dear Attorney Sousa: I have received the petitions of Patrick Higgins appealing the responses of the Fall River Housing Authority (Authority/FRHA) to requests for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 31, 2024, in two separate requests, Mr. Higgins requested: SPR24/1666 a .pdf copy of the executed contracts for any pest control company that services or serviced, Cardinal Mederios Towers ... Fall River MA at any time while I was a tenant or resident there. I am also requesting a copy of the pest control logs for every time that FRHA allowed any of the contracted pest control companies into Apartment 1403 for evaluation and/or service. SPR24/1667 “[a] .pdf copy of all contract (sic) by and between the Fall River Housing Authority and Waltham pest control.” The Authority responded to both requests on June 3, 2024, seeking clarification of the timeframes for which Mr. Higgins seeks records. Unsatisfied with the Authority’s response, Mr. Higgins appealed, and this case was opened as a result. Subsequent to the opening of this appeal, on June 11, 2024, the Authority provided a supplemental response by email to Mr. Higgins and this office, claiming that the requested records are the subject of active litigation. 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

Michael J. Sousa, Esq. SPR24/1666; SPR24/1667 Page 2 June 17, 2024 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. 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 Authority’s June 11th response In its June 11, 2024 response, the Authority argues that “FRHA has a current pending case in the Southeastern Housing Court, Fall River Division, for a termination of Mr. Higgins tenancy.” The Authority further explains that “Mr. Higgins filed Discovery with the Housing Court for the FRHA. The first portion of his discovery requests filed with the court and the FRHA, include the same information he has requested through [the current appeals with the Supervisor].” 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 records that are the subject of Mr. Higgins’ requests, is active and ongoing in the Massachusetts Housing Court. See Fall River Housing Authority v. Patrick Higgins (Southeast Housing Court Docket No. 24-H83SP-01205FR (June 13, 2024)). 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).

Michael J. Sousa, Esq. SPR24/1666; SPR24/1667 Page 3 June 17, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Patrick Higgins