Steinmetz, Esq., John v. Cohasset, Town of - Town Manager (SPR 20150729)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 18,2015 SPRlS/729 Mr. Christopher G. Senior Town of Cohasset Town Manager 41 Highland A venue Cohasset MA, 02025 Dear Mr. Senior: I have received the petition of John Steinmetz, Esq. appealing the response of Town of Cohasset (Town) to his requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Attorney Steinmetz made multiple requests to the Town for public records. Attorney Steinmetz's requests dated September 6, 2015 and September 11, 2015 are the subjects of this appeal. Attorney Steinmetz's September 6 request was for records related to legal advice given to Jonathan Creighton, a member of the Town's Conservation Commission, regarding conflicts of interest. Attorney Steinmetz's September 11 request was also for records related to legal advice to Mr. Creighton regarding conflicts of interest and also included other records related to a property in the Town. Attorney Steinmetz appealed the Town's response to his September 6 request in a letter to this office dated September 11, 2015. Attorney Steinmetz subsequently appealed the Town's response to his September 11 request in a letter to this office dated October 6, 2015. Whereas the requests and responses are similar, I consolidated these matters into one appeal and will address the Town's responses in this Determination. Purpose of request; identity of requester I understand these records are related to pending litigation. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Christopher G. Senior SPR15/729 Page Two December 18,2015 Attorney Steinmetz's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Steinmetz may wish to consider another means of seeking to obtain any existing responsive records. September 6 request In a response date September 11, 2015 the Town denied Attorney Steinmetz's September 6 request in its entirety claiming that should such documents exist they are protected under the common law attorney client privilege. In a supplemented response dated September 25, 2015 you explained that Attorney John Richard Hucksam, Jr. has not provided Mr. Creighton with any written legal opinions concerning conflicts of interest in the James Island matter pending before the Conservation Commission or any written opinion concerning conflicts of interest on any other matter. Attorney Louis Ross, an attorney with the firm that represents the Town in this matter, provided a supplemental response to Attorney Steinmetz in a letter dated October 1, 2015. In this letter, Attorney Ross explains that the sole legal advice given to Mr. Creighton was a confidential communication given orally by telephone. Attorney Ross also states "the Town denies having made or received any public records, regardless of form, responsive to Attorney Steinmetz's [r]equest." In a letter to this office dated October 15, 2015, Attorney Ross explains that the Town provided Attorney Steinmetz with a copy of a written public disclosure made pursuant to G.L. c. 268A, § 23(b )(3). Attorney Ross also states that any records related to a written legal opinion were provided to Attorney Steinmetz in response to his multiple public records requests. In a telephone conversation with an attorney on my staff, Attorney Ross explained that the reference to the attorney-client privilege was not meant to imply there are responsive records; instead, the Town was merely reciting relevant law. Attorney Ross confirmed the Town has provided all records responsive to the September 6 request. Whereas the Town has provided all records responsive to Attorney Steinmetz's September 6 request, I will consider this portion of the appeal closed.

Mr. Christopher G. Senior SPR15/729 Page Three December 18, 2015 September 11 request I understand Attorney Steinmetz modified this request in a letter dated September 22, 2015. In his appeal petition dated October 6, Attorney Steinmetz informed this office that, in a letter dated October 5, 2015, the Town provided him with a fee estimate for the provision of records responsive to his September 11 request Attorney Steinmetz explains that he paid the estimated fee amount of$1,218.69 and received certain records. However, he believes the Town failed to provide all of the responsive records. Attorney Steinmetz asks this office to order the Town to produce all responsive records and "return the $1,218.69 I was wrongfully induced to pay for the nonresponsive documents." It does not appear that Attorney Steinmetz is challenging whether the fee estimate amount is in compliance with the Public Records Law; rather, he is alleging he did not receive all responsive records. Attorney Steinmetz is advised that he may appeal this fee estimate amount. In a letter to Attorney Steinmetz dated October 23, 2015, Attorney Ross states "all custodians of all applicable Town public records responsive to your [r ]equest have provided you with copies of all such records as required by Massachusetts' Public Records Law. ..." In a telephone conversation with an attorney on my staff, Attorney Ross confirmed the Town provided all records responsive to Attorney Steinmetz's September 11 request. Under the Public Records Law, the Town is not required to create a list of records or any record in response to a public records request. See G. L. c. 66, § 10 ( a); 32 Op. A tty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Whereas the Town provided all records responsive to the September 11 request, I will consider this portion of the appeal closed. No duty to answer questions In response to Attorney Ross' October 23 letter, Attorney Steinmetz asked Attorney Ross two questions regarding this request. It should be noted that a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Whereas the Town has not withheld records responsive to Attorney Steinmetz's September 6 request nor his September 11 request, I will consider this appeal closed.

Mr. Christopher G. Senior SPR15/729 Page Four December 18,2015 I 1 / w/ · . ( S illiams '~upervisor of Records cc: Mr. John Steinmetz, Esq. Mr. Louis Ross, Esq.