John & Susan Lemoie-Zarba v. Oak Bluffs, Town of - Town Administrator (SPR 20160900)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 25, 2016 SPR16/900 Michael A. Goldsmith, Esq. Reynolds, Rappaport, Kaplan & Hackney, LLC P.O. Box 2540 106 Cooke Street Edgartown, MA 02539 Dear Attorney Goldsmith: I have received the petition of Susan Lemoie-Zarba appealing the response of the Town of Oak Bluffs (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Lemoie-Zarba requested records related to title inspection reports, invoices and billing records, and survey reports regarding a specifically identified property. The Town responded in letters dated October 7, 2016 in which it provided certain records and withheld others under the attorney-client privilege and a provision of the Open Meeting Law. G. L. c. 30A, § 21(a)(l)(iv)(3). The Town's October 7 responses It appears Ms. Lemoie-Zarba made two (2) separate requests for records, both dated September 29, 2016. The Town responded in two (2) separate letters dated October 7, 2016. Title inspection and survey reports The Town provided a final plan related to the property in questions. However, it is unclear whether the "title inspection reports" and "survey reports" are being withheld pursuant to the Public Records Law or the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. Invoice and billing records The Town provided certain responsive records related to invoice and billing information. The Town indicates "[t]he responsive bills have been redacted to remove non-responsive information or communications protected by the attorney-client privilege." However, it is unclear which redactions were made under the attorney-client privilege and which pertain to 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 A. Goldsmith, Esq. SPR16/900 Page2 October 25, 2016 "non-responsive information." Further, each redaction under the attorney-client privilege needs to be supported by the standards outlined in Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). Unclear if Town provided all responsive public records; identity ofr equester In her appeal petition, Ms. Lemoie-Zarba indicated her belief that the Town did not provide all responsive records. For instance, she indicates she "requested the notes taken from all the meetings noted on these billing documents." It is unclear based on the Town's responses whether it possesses any additional responsive records related to billing, title inspection, or survey reports. See G. L. c. 4, § 7(26) (the duty to comply with requests for information extends to those records that exist and are in the custody of the custodian of records at the time of the request). In addition, it should be noted that 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). 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, Ms. Lemoie-Zarba may wish to consider another means of seeking to obtain any existing responsive records that may be exempt from public disclosure. Conclusion I understand an attorney on my staff contacted you about this matter and provided a copy of the file associated with this appeal. You indicated the Town would provide a supplemental response that addresses the issues described above. Accordingly, I will consider this appeal closed with the proviso that the Town provide Ms. Lemoie-Zarba with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. In its response to this order the Town must clarify whether it is invoking the Open Meeting Law to withhold records. 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 e sec.state.ma.us. cc: Mr. John J. Zarba and Ms. Susan Lemoie-Zarba Mr. Robert Whritenour