Bruce A. Issador, Esq. v. Nantucket, Town of (SPR 20170982)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31,2017 SPR171982 Florencia Rullo Records Access Officer Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Rullo: I have received the petition of Bruce Issadore, Esq. appealing the response of the Town of Nantucket (Town) to a request for public records. G. L. c. 66 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Issadore in two separate requests requested "to inspect the appraisal report relied upon for the value determination of the easements taken on 70 Milk Street Bike Path on May 2,2017." Also, on June 8,2017, Attorney Issadore requested copies of "appraisal reports for each and every such property subject to permanent and/or temporary easement subject to the foregoing bike path extension in which the property owner has reached final agreement with the Town for payment of damages in connection with such taking." In responses dated on May 15, 2017 and July 19,2017, you denied his requests claiming that the responsive records were exempt from disclosure under Exemption (i) of the Public Records Law. G. L. c. 4, 5 7(26)(i). 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, 5 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, 5 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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (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. One Ashburton Place, Room 17 19, Boston, Massachusetts 02 108 (6 17) 727-2832- Fax: (61 7) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Florencia Rullo Page 2 July 31,2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request Please note that the reason for which a requester 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 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, Attorney Issadore'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). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Issadore may wish to consider another means of seeking to obtain any existing responsive records. The Town's Mny 15"' and June 19"' responses In both responses, the Town claimed Exemption (i) to withhold the records. In the June 19'" response, the Town indicated that "[als previously notified in the Town's May 15"', 20 17 response to your prior request, the appraisal reports you are seeking may be withheld from disclosure pursuant to Exemption (i) of the Public Records Law (G. L. c. 4, $7(26)(i)(2)-(3)) for a certain period of time." The Town further indicates that "[slince the exemption period has not expired, the Town continues to assert exemption (i) as a basis for withholding the requested appraisal report(s) at this time." Exemption (i) Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G.L. c. 4, §7(26)(i).

Florencia Rullo Page 3 July 31,2017 The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real property. Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241 (2004). According to Attorney Issadore, the Town has "entered into final agreements for a number of the properties that you have talten easements, both permanent and temporary." Attorney Issadore also reiterates that he requested "those appraisals evidencing the damages which other properties affected by the bike path sustained wherein the owners of said properties . . . [have] reached a final agreement with the Town and waived all rights to challenge the award as well as all rights to appeal." Consequently, I find that the Town has not met its burden in explaining how Exemption (i) applies to allow for the withholding the responsive records. The provisions of Exemption (i) are alternatives and not requisite conditions. Thus, once one of the three alternatives has occurred, Exemption (i) will no longer serve as a means to withhold the subject appraisal. See Id. at 243-244 (concluding that the clauses of Exemption (i) are disjunctive and not conjunctive). Accordingly the Town must clarify whether a final agreement has been reached for any of the properties as to which the Exemption will no longer apply. I understand a Public Records Division staff attorney contacted you about this. Conclusion Accordingly, whereas the Town has indicated that it will provide Attorney Issadore with a supplemental response, I will consider this appeal closed with the proviso that the Town provides said response in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Attorney Issadore may appeal the substantive nature of the response within ninety calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Issadore, Esq.