Russell Seelig v. Springfield, City of (SPR 20170863)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 11, 2017 SPR17/863 Anthony I. Wilson, Esq. City Clerk City of Springfield 36 Court Street Springfield, MA 01103 Dear Mr. Wilson: I have received the petition of Russell Seelig appealing the response of the City of Springfield (City) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Seelig requested copies of a document showing parcel numbers; addresses and the parcel owners who were sent requests under G. L. c. 59,§ 38D, "Valuation of Real Property Information;" and a list showing those parcel owners who did not respond to the requests from the City's Tax Assessor (Tax Assessor). Prior appeal and determination The City provided Mr. Seelig with a response on June 15, 2017, denying the request pursuant to G. L. c. 59, § 38D. Mr. Seelig appealed. See SPR17/747 Determination of the Supervisor of Records (Supervisor) (June 9, 2017). In my determination, I requested that the City provide a more detailed response to clarify how the cited statute applies to withhold the taxpayer mailing list and list of taxpayers who did not respond to the City's Real Property Information request under Section 38D. The City provided a supplemental response on June 22nct. Mr. Seelig appealed this response and the current appeal was opened. 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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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

Anthony I. Wilson, Esq. SPR17/863 Page 2 July 11, 2017 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, § 1O (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). Exemption (a) In your June 22nd response you state that the City is denying the request under G. L. c. 59, § 52B as it operates through Exemption (a) of the Public Records Law. Section 52B pertains to taxpayer information collected by the assessor(s) relative to appeals of tax assessments under Section 38D of Chapter 59, "Valuation ofReal Property Information." Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under a statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute that the City claimed to withhold the taxpayer information and lists of taxpayers sent requests for further information is G. L. c. 59, § 52B. This statute states: All information collected pursuant to section 8A of chapter 58A and sections 38D, 38E, 57D and 61A of this chapter shall be open to the inspection of the assessors, the commissioner, the deputies, clerks and assistants of either the assessors or the commissioner and such other officials of the commonwealth or of its political subdivisions who have occasion to inspect such information in the performance of their official duties, but to no other person except by order of the appellate tax board or a court ... Nothing in this section shall prevent a person who submitted that information, or

Anthony I. Wilson, Esq. SPR17/863 Page 3 July 11,2017 his designated representative, from inspecting or being provided a copy of the submission upon request. G. L. c. 59,§ 52B. In his petition, Mr. Seelig states that he disagrees with the City's interpretation of the statutes claimed to withhold the information he requested. It is his contention that the information being sought, "name, address and parcel number," is already public record on the City's website and tax rolls. Mr. Seelig also believes that "Real Property Information Request 38Ds" are supposedly being sent to all of the City's taxpayers, and it is this mailing list of taxpayers that he seeks. In addition, Mr. Seelig seeks a list of those taxpayers who have failed to provide further information to the Tax Assessor regarding the Real Property Information Request under G. L. c. 59,§ 38D. In your June 22nd letter and in a July 5th telephone conversation with an attorney in the Public Records Division you stated that the Tax Assessor conferred with the Department of Revenue Local Services (DOR) by telephone on June 13th to confirm that all information created, including the list of particular taxpayers, in relation to G. L. c. 59, § 38D Valuation of Real Property Information is exempt from public disclosure. The City did not receive a written opinion from DOR. The City denied Mr. Seelig's public records request because the Tax Assessor has created the list for the sole purpose of processing the 38D Request forms. G. L. c. 59, § 38D states that: A board of assessors may request the owner or lessee of any real property to make a written return under oath within sixty days containing such information as may reasonably be required by it to determine the actual fair cash valuation of such property. Failure of an owner or lessee of real property to comply with such request within 60 days after it has been made by the board of assessors shall be automatic grounds for dismissal of a filing at the appellate tax board. The appellate tax board and the county commissioners shall not grant extensions for the purposes of extending the filing requirements unless the applicant was unable to comply with such request for reasons beyond his control or unless he attempted to comply in good faith. If any owner or lessee of real property in a return made under this section makes any statement which he knows to be false in a material particular, such false statement shall bar him from any statutory appeal under this chapter. G. L. c. 59,§ 38D. You also explained that the Tax Assessor's mailing was not sent to all of the City's real property owners, only those who may own "income-generating" properties. The City developed that list in order to carry-out the duties and responsibilities of the Tax Assessor for Valuation of Real Property under Section 38D, which requires the Tax Assessor to request financial information from these particular property owners regarding the income generated by the property. G. L. c. 59, § 38D. In turn, the owners of these income-generating properties are to provide the Tax Assessor with the specific financial information requested for assessment under

Anthony I. Wilson, Esq. SPR17/863 Page 4 July 11, 2017 Section 38D. It is unclear how language in Section 38D would restrict access to a list of property owners and list of property owners who did not respond to the Tax Assessor's request for more information. It is understood from reviewing G. L. c. 59, § 52B that any information collected by the Tax Assessor regarding the valuation and assessment of the property owners who were sent the inquiries from the Tax Assessor is exempt. I find that the City has not met its burden of specificity under the Public Records Law because it is still unclear how a list of the "income generating property" owners created by the Tax Assessor for purposes of sending Valuation Request forms under G. L. c. 59,§ 38D, and a list of those property owners who did not respond and provide the requested information constitutes "lists" collected by the Tax Assessor pursuant to the statute. The City has not shown how these lists of taxpayers are different than the names, addresses and parcel numbers of all property owners that are already in the custody of the Tax Assessor and are used to generate property tax bills. Order Accordingly, the City is hereby ordered to provide Mr. Seeiig with a supplemental response, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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 at pre@sec.state.ma. us. Mr. Seelig may appeal the substantive nature ofthe supplemental response within ninety (90) days. 950 C.M.R. 32.08(1 ). Sincerely, ~.~ Supervisor of Records cc: Russell Seelig Andrea L. Stone