Linda Lessard v. Billerica, Town of (SPR 20190103)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 1, 2019 SPR19/0103 Mark LaLumiere Town of Billerica 365 Boston Road Billerica, MA O1 821 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." Previous appeals The requested records were the subject of previous appeals. See SPR18/1374 Determination of the Supervisor of Records (September 27, 2018); SPR18/1509 Determination of the Supervisor of Records (October 23, 2018); and SPR18/1586 Determination of the Supervisor of Records (November 14, 2018). In my November 14th determination, I ordered the Town to provide Ms. Lessard with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the November 14th determination, in a response dated November 28, 2018, the Town denied Ms. Lessard access to the responsive records because she has a unique right of access. Unsatisfied with the Town's response, Ms. Lessard petitioned this office and this appeal, SPR19/0103, 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). 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 SPR19/0103 Page 2 February 1, 2019 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 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 November 2st11 response In its November 28, 2018 response, the Town reiterates its position that it has made significant amount of documents available to Ms. Lessard in response to public records requests for inspection at several Town departments. The Town further reiterates that given the active litigation Ms. Lessard filed against the Town, her recent October 10th 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. 1881 CV00425 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, to which the Town has responded and produced responsive documents." 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 and the rules governing the production of documents relative to such litigation are governed by the Massachusetts Rules of Civil Procedure and not the Public Records Law. ..." The Town explains that it "has already produced all documents responsive to [Ms. Lessard's] requests for production of documents served on the Town pursuant to Mass. R. Civ. P. 4" and attaches a copy of the Town's response to Ms. Lessard's Request for Production of Documents. The Town also contends that Ms. Lessard's " ... recent public records request is a transparent attempt to circumvent the requirements of the Rules of Civil Procedure in an effort to obtain documents which [Ms. Lessard] intends to use in the pending litigation which would not otherwise be obtainable through the discovery process since all such documents did not play a role in the Zoning Board of Appeals ('ZBA') decision under appeal. Tellingly, the documents [Ms. Lessard has] requested all relate to historical decisions of the ZBA granting variances allowing construction of single-family dwellings." The Town states that Ms. Lessard's zoning appeal referenced above" ... involves Ms. Lessard's appeal of a variance denial issued by the Billerica ZBA pursuant to G. L. c. 40A, § 17 .... All of the documents submitted to the ZBA and

Mark LaLumiere SPR19/0103 Page 3 February 1, 2019 relied upon by the ZBA in rendering its decision have already been produced to [Ms. Lessard] in response to [her] discovery requests served on the Town" in the Lessard v. Billerica Zoning Board of Appeals matter. Accordingly, through such litigation you have exercised the 'unique right of access' pursuant to the Massachusetts Rules of Civil Procedure." The Town contends that" ... given the civil discovery available through the pending lawsuits, for which [Ms. Lessard' ha[ s] already propounded, entitlement to the records requested, if any, is governed by the Massachusetts Rules of Civil Procedure and not the Public Records Law." The Town continues to reiterate that because Ms. Lessard is a plaintiff in the two pending appeals, she has a unique right of access to the requested records via the discovery process available to her under the Massachusetts Rules of Civil Procedure. However, in her appeal petition, Ms. Lessard refers to the Town's response to her request for documents. In the "'Defendants' Response to Plaintiffs First Request for Production of Document' Superior Court C.A. No. 1881CV01930 dated 9/10/18," the Town claimed 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 contends that her October 10, 2018 request is not a new request but "an incomplete draft list created in order to help assist with the difficulty of access that began from [her] initial 6/22/18 file request. I was informed multiple times I needed a list of addresses in order for me to have file access." In light of the Town's claim, that Ms. Lessard is "requesting publicly available information. .. [ and] 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," coupled with Ms. Lessard's contention that the October 10thlist is not a new public records request but an outstanding request from her June 22nd records request, it is unclear how the Town cannot make the records available for Ms. Lessard's inspection. The Town must clarify this matter. This office encourages the Town and Ms. Lessard to communicate further to enable the Town to provide any requested public records. See G. L. c 66, § lO(a)(i). The Town must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(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, 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 10 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.

Mark LaLumiere SPR19/0103 Page 4 February 1, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Linda Lessard