Linda Lessard v. Billerica, Town of (SPR 20181586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 14, 2018 SPR18/1586

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, § 10A; 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.”

Previous appeals

The requested records were the subject of previous appeals. See SPR18/1374 Determination of the Supervisor of Records (September 27, 2018) and SPR18/1509 Determination of the Supervisor of Records (October 23, 2018). In my October 23" determination, I directed Ms. Lessard to describe her specific objections to the Town’s October 11, 2018 supplemental response. In a letter dated October 26, 2018, Ms. Lessard clarifies the reason for her appeal.

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, § 10A(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, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist.

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

Mar! LaLumiere SPR18/1586 Page 2 November 14, 2018

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, § 10(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 11 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 10" 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 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. . . .”

The Town indicates that because Ms. Lessard is a plaintiff in two pending appeals, she has a unique right of access to these records via the discovery process available to her under the Massachusetts Rules of Civil Procedure. However, in her petition for appeal, Ms. Lessard includes a portion of the “‘ Defendants’ Response to Plaintiffs First Request for Production of Document’ Superior Court C.A. No. 1881CV01930 dated 9/10/18,” where the Town claims in _ response to requests 8-10 that “[t]he Board objects: as requesting publicly available information which is equally available to plaintiffs. The Board further objects to 8, 9 & 10, as overly broad and unduly burdensome. Subject to and without waiving the foregoing objections, Plaintiffs may inspect the Boards permitting files as they are kept in the usual course of business at the Board’s offices at Town Hall during Town Hall office Hours.” Ms. Lessard further claims that “[t]he discovery in the zoning case is a separate issue. .. .” Accordingly, it is unclear how Ms. Lessard has a unique right of access to these records at this time that precludes her from pursuing an appeal. The Town must identify the means affording Ms. Lessard a “unique right of access” to

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the requested records.

Also, in its response, the Town indicates that the records are directly related to the two pending litigation matters. However, it is unclear how the requested records are directly related

to the litigation or are the subjects of disputes in active litigation. The Town must clarify this matter.

Further, in her appeal, Ms. Lessard indicates that after her inspection on 10/10/18, she left a handwritten list of files she tagged. Ms. Lessard claims that she has not received copies of these records yet. As such, this office encourages the Town and Ms. Lessard to communicate further to enable the Town to provide the requested public records. I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision.

Conclusion

Accordingly, the Town is ordered to provide Ms. Lessard with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Sincerely,

Pelccea Musa.

Rebecca S. Murray Supervisor of Records

ce: Linda Lessard