Michael Ticcioni v. Nantucket Islands Land Bank (SPR 20180804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 12, 2018 SPR18/804 Jesse Allyn Bell Assistant Director Nantucket Islands Land Bank 22 Broad Street Nantucket, MA 02554 Dear Ms. Bell: I have received your petition on behalf of the Nantucket Islands Land Bank (NLB) seeking an extension of time to furnish copies of a requested record, or any portion thereof. G. L. c. 66 § lO(c). As required by law, NLB furnished a copy of this petition to the requestor. Id. On May 9, 2018 Michael Ticcioni, Esq. of Mintz, Levin, Cohn, Ferris, Glovsky, and Popeo, P.C (Mintz Levin) requested 28 categories of records related to the Miacomet Golf Club. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). 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

Jesse Allyn Bell SPR18/804 Page 2 June 12,2018 If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requester within ten business days after receipt of a request for public records. 950 CMR 36.06(4)(b). Current petition In its June 4th petition, NLB explains that it responded to prior requests in a timely fashion; however, you assert that the May 9th request "dispenses with any pretense ofrelevance to the EOEEA approval process that Mintz Levin seeks to influence, and sprawls into umelated and harassing territory. The Request seeks to punish NLB for its lawful advocacy before EOEEA, and in no way advances 'the broad dissemination of information to the public about actual or alleged government activity.' G.L. c. 66, § lO(c)." NLB noted that certain requests were broad and do not include time limits. NLB asserts "[b] ecause of the factors described above, the Request is 'part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass,' and 'not intended for the broad dissemination of information to the public about actual or alleged government activity.' G.L. c. 66, § 10. It is thus appropriate for the Supervisor to 'relieve the agency [ ... ]of its obligation to provide copies of the records sought.' Id." In the alternative, NLB requests a six-month extension of time to comply with the request in light of the size of the request and the limited number of staff available to produce records. You also assert that " [a ]t a minimum, the Request merits the statutory 20 business day extension, in view of (1) the considerable 'need to search for, collect, segregate or examine records,' (2) the limited 'capacity or the normal business hours of operation of the agency [ ... ] to produce the request without the extension,' (3) the fact that the request is 'part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate,' and (4) the lack of 'public interest served by expeditious disclosure.' G.L. c. 66, § lO(c)." Attorney Ticcioni responded on June 6, 2018 indicating "we object to the characterization of our May 9, 2018 public records request (the 'Requests') as a 'campaign of intimidation and harassment.' To the contrary, and as the documents attached to the Petition make clear, we have tried to reduce any potential burden on the Land Bank wherever possible." Attorney Ticcioni also explains "we have voluntarily clarified and narrowed several of our requests as set forth below. In addition, we have never requested a waiver of any fees in connection with the Requests, and we remain happy to pay any such reasonable fees associated with the Land Bank's efforts to provide the requested public records." He notes that the

Jesse Allyn Bell SPR18/804 Page 3 June 12, 2018 requested records generally fall into four categories: "information about the Land Bank, financial information, governmental approvals, and communications." With respect to a timeframe for producing records, Attorney Ticcioni explains "in the interest of working collaboratively to reduce the burden on the Land Bank, we agree to the Land Bank's request for an additional 20 business days to produce the records ...." He continues by limiting the scope of several categories of records by, for example, specifying types of records sought and providing time periods for responsive records. NLB responded on June 7, 2018 by asserting "[e ]ven as modified by the Response, the requests are sprawling - far exceeding the breadth and depth of Mintz Levin's three prior requests, to which NLB responded in timely fashion - and would require a voluminous response. Understood in their proper context, as outlined in the Petition, they remain intended to harass or intimidate, and are not intended for the broad dissemination of information to the public." Based on the information provided in NLB's petition, as well Attorney Ticcioni's June 6th letter that attempts to narrow the request and offers to agree to additional time, I find that NLB has not met its burden to demonstrate the requests are frivolous or designed to intimidate or harass. NLB also has not established how these requests, which pertain to records related to use of public funds and government approvals, are "not intended for the broad dissemination of information to the public about actual or alleged government activity," as required by G. L. c. 66, § lO(c). Additionally, I find that in light of Attorney Ticcioni's agreement for additional time to comply with the request, I find it is unnecessary to opine on NLB 's petition for an extension of time to produce records. See G. L. c. 66 § lO(b )(vi) ("the requestor may voluntarily agree to a response date beyond the timeframes set forth herein"). This office encourages NLB and Attorney Ticcioni to continue to communicate facilitate providing records efficiently and affordably. G. L. c. 66, § 1O (b )(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, for the reasons described above, I decline to grant NLB's petition to relieve it of its obligation to fulfill the request. Further, I find it is unnecessary to opine on NLB' s petition for an extension of time to produce records. NLB is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. Attorney Ticcioni may appeal the substantive nature of the NLB response within ninety days. See 950 C.M.R. 32.08(1).

Jesse Allyn Bell SPR18/804 Page 4 June 12, 2018 Sincerely, ~y~ Supervisor of Records cc: Michael J. Ticcioni, Esq.