Catherine Clairmont v. Edgartown, Town of - Town Clerk (SPR 20190246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 21, 2019 SPR19/246 James Hagerty Town Administrator Town of Edgartown P.O. Box 35 Edgartown, MA 02539 Dear Mr. Hagerty: I have received the petition of Catherine Clairmont appealing the response of the Town of Edgartown (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on January 14, 2019 Ms. Clairmont requested the following records: All correspondences (i.e. e-mails, text, or other) to and from James Hagerty and the WW Commissioners and WW staff, Dave Thompson and Pia Webster related to the Duarte Circle Sewer project and related matters (neighbors opposition, WWC meetings, our Records Request and OML complaints) All correspondence (i.e. e-mails, text, or other) to and from James Hagerty and the following individuals: June Ameen, Jinane Aboundi and Munther Dahleh, Susan and Richard Tressider, Judith Conley, Patricia Lewitz, Henry Fauteux, Reid Silva and Douglas Sederholm since we have been issued our sewer permit for Duarte Circle from February 2018 to present. We presume this request should not result in many pages of records. The Town initially responded on January 29, 2019 by providing a fee estimate for the provision of records. 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

James Hagerty SPR19/246 Page 2 February 21, 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. Appeal In her appeal petition Ms. Clairmont indicates she objects to the Town's fee estimate of $162.50. She further notes "[t]he cost for these records should be adjusted, the amount of documents produced should be clarified and sent electronically. We do not want to pay for a limited amount of records being produced. We doubt there are many records as a result of this request. Given the records are in the office for pick up-- the RAO should specify how many records exists. We should receive these records before we have to pay for them." Subsequent to the opening of this appeal, the Town provided this office a letter it provided to Ms. Clairmont on February 8, 2019. In this February gth letter the Town indicates "[o]n February 7, 2019, you, through Counsel, filed a civil action in the Middlesex Superior Court, Docket No. 19-317, against Wastewater Commissioners, Wastewater staff, the Town, and multiple private persons who own property near your seasonal rental home. These defendants are the same persons with who you continue to press for communications with under the public records law." This response also explains that "[y]our civil action challenges various decisions of the Wastewater Commission, and seeks rulings and declarations to the legality of these rulings, and seeks mercy damages on various theories, including civil conspiracy among Town employees and private persons. The records you seek are relate to the subject matter of active litigation .... " Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. The requests at issue in this appeal is similar to those described in the Town's February gth because they seek correspondence between and among Wastewater Commissioners and Town employees regarding topics such as the Duarte Circle Sewer project. Whereas the requested records at issue in this appeal relate to the subject matter of the complaint filed against the Town, which, according to the filing, was brought to challenge the substantive actions of the Town and names as defendants certain individuals referenced in the request, I find these records are the subject of dispute in active litigation. Therefore, I decline to

James Hagerty SPR19/246 Page 3 February 21, 2019 opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); Catherine Clairmont, et. al, v. Town of Edgartown, et al, No. 19-317 (Middlesex Superior Court). It should be noted that a change in the status of this action could impact the applicability of950 C.M.R. 32.08(2)(b)(l). Sincerely, ~~ Supervisor of Records cc: Catherine Clairmont