Christopher Donovan v. Norwood, Town of - Town Clerk (SPR 20180860)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 27, 2018 SPR18/860 Thomas J. McQuaid, CPA Town of Norwood-Town Clerk 566 Washington Street, Room 27 P. 0. Box40 Norwood, MA 02062 Dear Mr. McQuaid: I have received the petition of Christopher Donovan appealing the response of the Town of Norwood (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Donovan requested twelve categories ofrecords concerning the Norwood Airport Commission. Current Appeal This request was the subject of a previous appeal. See SPRl 8/831 Determination of the Supervisor of Records (June 12, 2018). Inmy June lih determination, I closed SPR18/831 in light of the Town's response to Mr. Donovan dated June 5, 2018. In a letter dated June 13, 2018 Mr. Donovan expressed to this office that he received "partial production of documents via US Mail on Monday June 12, 2018." Unsatisfied with the Town response, Mr. Donovan petitioned this office, and as a result SPRl 8/860 was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all ----- g - ov - ern - m ~ enta - l re - co ~ rds - 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 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 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

Thomas J. McQuaid, CPA SPR18/860 Page2 June 27, 2018 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. June JJ1h Letter In his letter dated June 13, 2018, Mr. Donovan states, "I am appealing the substantive nature and partial response of the documents produced." In the June 13th letter, Mr. Donovan states he is appealing the following items: (2) Copies of any leases in effect between the NAC, FLN, the Town of Norwood, include the leases for space occupied by the Norwood Airport Manager, NAC members and meetings, as well as any other leases in effect from 1-1-2014 to the present. I have obtained copies ofleases prior however with the numerous changes made by the NAC in executive session and other possible meetings away from the Norwood Airport, I am requesting updated leases; (5) Copies of any leases, assignments, easements or other agreements concerning the "West Ramp" or Lot Bon the Norwood Airport. Include agreements on any portion of the West ramp, excluding Tie Down agreements. This includes any use agreements, giving any firm, person or entity any right to use the West ramp or Lot B, for any use. Any encumbrances on the "West Ramp" or any other areas of the Norwood Airport not included in leases provided in #2 above; (7) Copies of all documents sent or received between the NAC, FLN, the Town of Norwood, MASS DOT, from 1-1-2013. In which the Single FBO exemption is discussed or mentioned. As noted by the numerous letters, emails and documents, between the NAC, FLN. The Single FBO exemption is clearly defined. Under oath it was disclosed that possibly NAC members or some other person acting on behalf of the Town of Norwood, NAC, or FLN, had contacted the FAA to inquire or discuss the application of the single FBO exception at Norwood Airport; (8) Copies of all communication, regarding any changes to the Rules and Regulations for the Norwood Airport published and approved in 2008. Any request for a change in the rules or regulations, under MGL Chapter 90. Please include any request for a change in the NAC rules, reglllations, as well as the approval of the change, under MGL Chapter -------------- 90. Showing the promulgation of the change in accordance with MGL Chapter 90; (9) Copies of all documents, records or communication between the NAC, FLN, the Town of Norwood or Attorneys, from 1-1-2018 to the present. There may be an overlap in a prior request for similar information. (10) Copies of all changes for any lease or agreement on the following areas of Norwood Airport, Lots A, B, C, Lot's X, Y, Z, the DC-3 ramp, Lot's 5,6,7, or any other land lease agreement in effect, from 1-1-2014 to the present. Excluding tie down leases. This request clarifies the lease requests of #2 and #5 above. This would include leases to

Thomas J. McQuaid, CPA SPR18/860 Page 3 June 27, 2018 David Spiegal, Annex Realty Trust, Verizon Communications or any other entity leasing land from Norwood Airport. If any lend on the Airport has been released from FAA oversight through release of the obligations under the Grant Assurances, please include the release and supporting documents; (11) An unredacted copy of the Sub lease in effect for the Norwood Airport property, leased to David Spiegal, Annex Realty Trust, the NAC, Town of Norwood, and Verizon Communications. I have obtained a copy in the past of the lease in effect, however it had been redacted as to the rates in effect, for the public land, on the Norwood Airport, under lease. As this is public land and part of the Norwood Airport this lease rate should be public information. If there is a claimed exemption please disclose this exemption. June 5th Letter In a letter dated June 5, 2018 the Town provided Mr. Donovan records responsive to his request in addition to a cover sheet explaining the items that were not furnished. In the June 5th letter the Town states that there were no records responsive to items #5, #7, #8, and #10. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii).With respect to items #2, #9, #11, it is my understanding that a member of the Public Records Division spoke to Attorney Karis L. North of Murphy, Hesse, Toomey, & Lehane LLP, who is representing the Town in this matter. In his June 15th letter, Mr. Donovan writes, "I did not obtain the documents claimed under the 'Packet #1' dated 4-15-2015." Subsequent to the intervention of a member of the Public Records Division, I learned that Mr. Donovan received a copy of records responsive to item #2 on April 15, 2018. In an email dated June 26, 2018, Attorney North provided this office a copy ofreceipt of documents signed by Mr. Donovan. In the matter of item #9, the Town writes in its June 5th response, "it is unclear what communications are being requested." In light of the June 5th response, as well as Attorney North's communication with this office, this office encourages the Town and Mr. Donovan to communicate further to enable the Town to provide the requested public records. G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). If unresolved issues --------------- remain, Mr. Donovan mayappeal the substantive nature of the Town's response within ninety days. See 950 C.M.R. 32.08(1 ). The June 5th response further notes that there are no records responsive to item #11. On June 26, 2018 Attorney North provided Mr. Donovan a supplemental response to his request in which she writes, "the Town of Norwood only has custody and control of a redacted copy of the sub-lease requested, which I understand was previously produced. Thus, no responsive documents exist within the custody and control of the Town of Norwood, consistent with the response provided to the requestor."

Thomas J. McQuaid, CPA SPR18/860 Page 4 June 27, 2018 Conclusion Whereas the Town provided Mr. Donovan records responsive to item #2, and does not possess records responsive to items #5, #7, #8, and #10 and has no duty to create them, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Donovan Karis L. North, Esq.