Cathy Kucinskas v. Provincetown, Town of - Office of the Town Clerk (SPR 20181320)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 14, 2018 SPRlS/1320 Darlene Van Alstyne Town Clerk Provincetown Town Clerk's Office 260 Commercial Street Provincetown, MA 02657 Dear Ms. Van Alstyne: I have received the petition of Cathy Kucinskas appealing the response of the Town of Provincetown (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specially, Ms. Kucinskas made a public records request on August 13, 2018 asking for "[a]ll correspondence regarding heights of structures as built or unbuilt within the site plan, at 350 Bradford for all units or buildings other than units 9 & 10." Also, Ms. Kucinskas requested correspondence between or among Town employees concerning the Provincetown Planning Board or Board of Zoning Appeals regarding 350 Bradford Street. The Town provided a response to Ms. Kucinskas on August 27, 2018 which she appealed. 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 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, § IO(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. G. L. c. 66, § IO(b)(iv). 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

Darlene Van Alstyne SPR18/1320 Page2 September 14, 2018 Appeal I understand that subsequent to the filing of the appeal, Attorney Michele Randazzo, on behalf of the Town, provided a response dated August 30, 2018. This response provides additional information regarding the existence of responsive records as well as the fee estimate. This office will forward a copy of the August 30th response to Ms. Kucinskas. Attorney Randazzo explains there is a pending Open Meeting Law complaint with the Office of the Attorney General (AGO) regarding certain responsive records. Given that an interpretation of the Open Meeting Law falls within the authority of the AGO and not this office, I decline to provide a determination as to the public status of the records at issue in the Open Meeting Law complaint at this time. See G. L. c. 30A, § 23. Attorney Randazzo also notes that the Town sought clarification regarding timeframes for records sought and Ms. Kucinskas identified a relevant time period for certain records. This office encourages the Town and Ms. Kucinskas to continue to communicate to enable the Town to provide public records in an efficient and affordable manner. See G. L. c. 66, § IO(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 municipality to produce records sought more efficiently and affordably). In light of the Town's August 30th response that provides additional information regarding the fee and Open Meeting Law complaint, I will now consider this administrative appeal closed. To the extent that there are any remaining issues that are not the subject of the Open Meeting Law complaint, Ms. Kucinskas may appeal the substantive nature of the Town's August 30th response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ r r ~ Rebecca S. Murray Supervisor of Records cc: Cathy Kucinskas