Russell Seelig v. Springfield, City of - Public Schools (SPR 20171053)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofRecords August 1l ,201 7 SPRl7/1053 Andrea L. Stone Public Records Coordinator City of Springfield City Clerk's Office 36 Court Street; Room 123 Springfield, MA 0 1 103 Dear Ms. Stone: I have received the petition of Russell Seelig appealing the August 1,201 7 response of the City of Springfield (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Seelig requested a list of the names, addresses and parcel numbers of the individuals and/or entities the City sent Information Request 38Ds, and a list of the names, addresses and parcel numbers of those who did respond to the City's request. Prior Appeals The requested records were the subject of two prior appeals. SPR171854 Supervisor of Records Determination (June 9,201 7; July 11 ,201 7). In both the June and July Determinations, I ordered the City to provide a more detailed response to clarify how the cited statute applies to the withholding of the responsive records. Subsequently, the City provided a further response dated August 1 20 17. However, that St, response did not provide any additional support for denying Mr. Seelig access to the records. The City continues to claim that the records are exempt pursuant to Exemption (a) and cited a statute without providing any specificity to prove its exemption claim. On August 2nd,M r. Seelig petitioned this office objecting to this response. Mr. Seelig notes that: 1. The City refers to a conversation with the Department of Revenue (DOR) but does not explain with whom the City conferred with to arrive at its decision to withhold the requested records; 2. The City did not comply with the Supervisor's prior Determination specifically asking the City to further explain how the lists of taxpayers are different than the One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Andrea L. Stone Page 2 August 1l ,201 7 names, addresses and parcel numbers of all property owners that the City has in its tax records; and 3. The City did not comply with the Supervisor's order on the timeliness of providing a supplemental response. 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). 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 1 1 (1 995) (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. Exemption (a) In its June 22nda nd August 1" responses, the City continues to deny Mr. Seelig's 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 of Real 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 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 Geii. v. Collector of Lynn, 377 Mass. 15 1, 54 (1 979); 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

Andrea L. Stone Page 3 August 11,2017 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 continues to claim to withhold the responsive records is G. L. c. 59, 5 52B. This statute states: All information collected pursuant to section 8A of chapter 5 8A and sections 3 8D, 3 8E, 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 his designated representative, from inspecting or being provided a copy of the submission upon request. Mr. Seelig disagrees with the City's interpretation of the statutes claimed. 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. He also believes that "Real Property Information Request 38Ds" is supposedly being sent to all of the City's taxpayers, and it is this mailing list of taxpayers that he seeks. Additionally, 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, 5 3 8D. In the City's June 22'ld and August lStr esponse letters, and during a July 5tht elephone conversation between a Public Records Division attorney and City Clerk, Anthony Wilson, the City claimed that the Tax Assessor conferred with the Department of Revenue Local Services (DOR) by telephone on June 13"' to confirm that all information created, including the list of particular taxpayers, in relation to G. L. c. 59, 5 38D Valuation of Real Property Information is exempt from public disclosure. 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, 5 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

Andrea L. Stone Page 4 August 11,2017 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 ltnows to be false in a material particular, such false statement shall bar him from any statutory appeal under this chapter. During our review of the prior appeals, Mr. Wilson 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, 5 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 Section 38D. To date, it is unclear how language in Section 3 8D would restrict access to a list of property owners and a list of property owners who did not respond to the Tax Assessor's request for more information. The City failed to meet the specificity requirement under the Public Records Law and its Regulations. 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 remains 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, 9 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. To date, 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. In Mr. Wilson's August lStr esponse to Mr. Seelig, he listed both the numbers of 38D returns for Tax Year 201 8 that were "Mailed Out" and "Returned in the spirit of transparency. However, despite the City providing this information, it still must provide a more detailed response regarding its exemption claim, in this case, the statute and how it applies to the withheld records. Conclusion On August 10"' a staff member in the Public Records Division provided you with a copy of the appeal file and in a telephone conversation, you indicated that the City would provide a more detailed, supplemental response to the issues raised by Mr. Seelig's petition to the Supervisor. Accordingly I will consider this appeal closed with the proviso that the response is provided in a manner consistent with this order, the Public Records Law and its Regulations,

Andrea L. Stone Page 5 August 1l ,201 7 without delay. 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 of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray w Supervisor of Records cc: Russell Seelig