Linda Lessard v. Billerica, Town of (SPR 20181509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 23, 2018 SPR18/1509 Mark LaLumiere Town of Billerica 365 Boston Road Billerica, MA 01821 Dear Mr. LaLumiere: I have received the petition of Linda Lessard appealing the response of the Town of Billerica (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on June 22, 2018, Ms. Lessard requested time to inspect and review" ... all records maintained in your office that include special permits and/or variances for new home constructions between 2013-2018." Ms. Lessard also requested to review" ... all reports, research, emails, letters, correspondences, notes, minutes, audio tapes and any other documents maintained by your office related to my property on Mulberry Lane." Purpose of request; identity ofrequestor 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. Lessard'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. Lessard may wish to consider another means of seeking to obtain any existing responsive records. 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

Mark LaLumiere SPR18/1509 Page 2 October 23, 2018 Previous appeal The requested record was the subject of a previous appeal. See SPRl 8/13 7 4 Determination of the Supervisor of Records (September 27, 2018). In my September 2ih determination, I ordered the Town to review the requests made by Ms. Lessard and provide any requested records in accordance with the Public Records Law, its Access Regulations, and the order. Following the September 2ih determination, the Town coordinated with Ms. Lessard and she was allowed to inspect the records on October 4, 2018, and October 10, 2018. After reviewing the records, Ms. Lessard made another public records request to inspect and review additional records. On October 11, 2018, the Town provided a written response denying access to responsive records because Ms. Lessard has a unique right of access. Unsatisfied with the Town's response, Ms. Lessard petitioned this office and this appeal, SPR18/1509, was opened as a result. 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, § 1O (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, § 1 O(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 October lilt response In its October 11, 2018 response, the Town indicates that it has afforded Ms. Lessard with numerous opportunities to review documents in various Town departments, including the Town Clerk's Office, the Building Department Office, and the Zoning Board of Appeals Office (ZBA), in relation to her public records requests. In regards to Ms. Lessard's current request, seeking to review additional files from the ZBA, the Town indicates that although it possesses responsive records," ... given the litigation [Ms. Lessard] recently filed against the Town," her October 1o th request, "is not being considered a request for public records pursuant to 950 C.M.R. 32.06(g) within the meaning of the law due to the pending litigation involving [Ms. Lessard] as plaintiff, pending in Middlesex Superior Court, Lessard v. Billerica Conservation

Mark LaLumiere SPR18/1509 Page 3 October 23, 2018 Commission, et al., Docket No. 1881CV00425 and Lessard v. Billerica Zoning Board of Appeals, et. al., Docket No. 1881CV01930." The Town states that Ms. Lessard has "also served discovery in the zoning case, which is pending at this time ...." The Town further asserts that" ... given the pendency of these lawsuits, of which [Ms. Lessard is] a party, [her] request does not comprise a public records request and the Town is not obligated to respond to same under the provisions of the Public Records Law since the records relate directly to such active litigation. At this juncture, given the civil discovery available through the pending litigations, entitlement to the records requested, if any, is governed by the Massachusetts Rules of Civil Procedure and not the Public Records Law. ..." Conclusion In light of the Town's response, coupled with Ms. Lessard's petition for appeal, it is . unclear what the basis of Ms. Lessard' s appeal is. Ms. Lessard is reminded that all petitions for appeal "shall specifically describe the nature of the requester's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Accordingly, Ms. Lessard must describe her specific objections to the Town's response. Sincerely, ~r~ Supervisor of Records cc: Linda Lessard