Kathryn E. Gallagher v. Wenham, Town of (SPR 20180770)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 12, 2018 SPRlS/770 Peter Lombardi Town of Wenham-Town Administrator 13 8 Main Street Wenham, MA O1 984 Dear Mr. Lombardi: I have received the petition of Kathryn Gallagher appealing the response of the Town of Wenham (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 27, 2018, Ms. Gallagher requested the following categories of records: "1. Any communication or correspondence referring to, concerning, reflecting or relating to 'Gallagher,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 2. Any communication or correspondence referring to, concerning, reflecting or relating to 'Phippen,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 3. Any communication or correspondence referring to, concerning, reflecting or relating to '253 Larch Row,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 4. Any communication or correspondence referring to, concerning, reflecting or relating to 'Hurdle Hill Farm,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 201 7 and the date Public Records are produced in response to this Request. 5. Any communication or correspondence referring to, concerning, reflecting or relating to 'bed & breakfast,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 6. Any communication or correspondence referring to, concerning, reflecting or relating to 'short-term rental,' made, recorded, received, requested, or distributed by any 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

Peter Lombardi SPR18/770 Page 2 June 12,2018 employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request. 7. Any communication or correspondence referring to, concerning, reflecting or relating to 'Airbnb,' made, recorded, received, requested, or distributed by any employee or official of Wenham, Massachusetts between January 1, 2017 and the date Public Records are produced in response to this Request." Previous appeal This request was the subject of a previous appeal. See SPR18/577 Determination of the Supervisor of Records (May 9, 2018). I closed SPR18/577 by ordering the Town to provide further information as to whether the public records in question are the subject of a dispute in active litigation. Fallowing the determination, the Town provided a response on May 23, 2018. In its May 23rd response, the Town contends that Ms. Gallagher has a unique right of access and that the requested records are covered under 950 C.M.R. 32.08(1)(a). The Town also indicates that Exemption ( d) permits it to withhold the records from disclosure. Unsatisfied with the Town's response, Ms. Gallagher petitioned this office and this appeal, SPR18/770, was opened as a result. Purpose of request; identity of requester 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 requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Ms. Gallagher'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, Ms. Gallagher may wish to consider another means of seeking to obtain any existing responsive records. 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, § lOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical

Peter Lombardi SPR18/770 Page 3 June 12, 2018 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, 419 Mass. 507, 511 (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Town's May 23rd response In its May 23, 2018 response, the Town attaches a copy of the court complaint and reiterates that Ms. Gallagher is one of the plaintiffs in the pending litigation. The Town notes that the "lawsuit, captioned Kathryn (Kate) Gallagher - Representative Phippen Family Trust and William and Hemy Phippen-Trustees Phippen Family Trust v. the Town of Wenham Board of Appeals, Planning Board, and Planning Coordinator, Essex Superior Court Docket No. 1777CV01193, was filed in August, 2017." The Town asserts that the "appeal remains open and pending in the Essex County Superior Court" and contends that Ms. Gallagher's characterization of the active litigation that it "'is not an appeal of the decision itself, rather the misrepresentation of the decision in written form, ... is ultimately irrelevant."' The Town asserts that "[t]he court complaint seeks judicial de novo review under G. L. c. 40A, § 17, and specifically seeks that one of the permit conditions should be stricken. [The] request seeks all communications that 'refer[] to, concern[] or relat[e] to' [Ms. Gallagher], the Phippens/Phippen Family Trust, 253 Larch Row also known as Hurdle Hill Farm, and 'Bed & breakfast,' or related phrases such as 'short term rental' or 'Airbnb.' ... '[A]ny communication or correspondence' including or referencing any of these search terms, implicates your special permit application, the issuance of the permit with conditions, and/or your subsequent appeal." Further, the Town references its April 10th letter and reiterates that Exemption (d) permits it to withhold records concerning an on-going litigation involving a public body. The Town asserts that "given the pendency of litigation brought by [Ms. Gallagher] against Town boards and officials, and given that the specific 'search terms' or topics that [Ms. Gallagher identifies] in [her] request are inextricably related to the pending litigation, it is likely that responsive records will contain information concerning the Town's litigation position and/or defense strategy in currently pending litigation, and they may be withheld or redacted accordingly." Whereas the public records in question are the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in

Peter Lombardi SPR18/770 Page 4 June 12, 2018 active litigation, administrative hearings or mediation"). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Accordingly, this appeal is now closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kathryn Gallagher