Elizabeth Warren v. Lexington, Town of (SPR 20190448)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 11, 2019 SPR19/448 Lorraine Garrett Town of Lexington 1625 Massachusetts A venue Lexington, MA 02420 DearMs. Garrett: I have received the petition of Elizabeth Warren appealing the response of the Town of Lexington (Town) to a February request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Warren requested copies of: 1. Any and all documents and related correspondence associated with the Zoning Board of Appeals (ZBA) heard at the January 24, 2019 hearing. This includes but is not limited to additions to the file, such as an email from me to Precinct 5 Town Meeting members, and the emails submitting those additions or memos; 2. Any and all documents and correspondence generated by or shared with Karen Mullins regarding the building project at 11 and 15 Fulton Road, including but not limited to notes related to her site visit of December 11, 2018; and 3. Any and all communications related to my Public Records request of January 9, 2019 for documents related to the Planning Boards 2016 possible Town Meeting article on retaining wall height and any other requests made through Public Records [L]aw or otherwise by other parties for these same documents, including but not limited to requests by Speedwagon Partners or its representatives or [T]own staff and any forwarding of my public records requests to other parties. Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/185 Determination of the Supervisor of Records (Supervisor) (February 6, 2019). The prior appeal was opened due to a non-response to Ms. Warren's request within ten (10) business days. In my February 6, 2019 determination, I ordered the Town to provide Ms. Warren with a response to her request. The Town's February 21, 2019 response to Ms. Warren indicated that a search would be commenced and the documents produced by March 14, 2019. As a result, Ms. Warren petitioned 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

Lorraine Garrett SPR19/448 Page2 March 11, 2019 the Supervisor of Records (Supervisor) pertaining to the Town taking twenty-five (25) days to provide the records, and this appeal was opened. 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, § lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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). The Town's February 2J8t and March 8th responses The Town's February 21st response did not identify any records or categories ofrecords that the Town intends to provide, nor did it identify any records or categories of records it intends to withhold, including the reasons for withholding a record under a specific exemption. See G. L. c. 66, § lO(b)(iv),(v). Further, the did the Town explain why it requires twenty-five (25) days to produce the records. On March gt\ after a telephone discussion between a Public Records Division staff attorney and the Town's Legal Counsel, Mina Makarious, Esq. and Christina S. Marshall, Esq. of Anderson Kreiger, LLP, an email from Attorney Marshall was sent to this office to provide a status report concerning Ms. Warren's February 6th requests. In her email, Attorney Marshall explained, "[a ]s we discussed, the Town has run an exhaustive search of all potentially relevant staff members' emails to find correspondence responsive to Ms. Warren's public records requests. The Town's initial search resulted in 1,000+ emails, totaling more than 5,000 pages." Attorneys Makarious and Marshall informed this office that they are in the process of reviewing the emails for any exempt material, including any privileged communications; but, the Town is on track to provide the records to Ms. Warren the week of March 11 t\ in advance of the initial 25-day deadline. Attorney Marshall also explains in her March gth email that the Town is running a supplemental search to capture correspondence sent after the first search was conducted. After the supplemental search is complete, Attorneys Makarious and Marshall intend to review those communications and produce any new emails as soon as possible.

Lorraine Garrett SPR19/448 Page 3 March 11, 2019 The Town's attorneys were advised that "if there are any fees associated with a response a written, good faith estimate must be provided. Once fees are paid, a records custodian must provide the responsive records." G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). The Town's February 21st response did not include any fees for the provision of public records. During the March 8th discussion, this office learned that the Town is waiving all public records fees. Active litigation between the Town and Ms. Warren Finally, this office learned that on February 28, 2019, Ms. Warren has filed a complaint commencing a law suit in the Middlesex Superior Court regarding an underlying matter concerning a building permit and a decision by the Town's Zoning Board of Appeals (Count I), and requests under the Public Records Law (Count II). This office was provided with a copy of the complaint and notice of the action revealing that that Ms. Warren is represented by Mark J. Lanza, Esq. of Concord, MA. See Warren, Elizabeth S., et al. v. Ralph D. Clifford, as member of Lexington Zoning Board of Appeals, et al., (Middlesex County Superior Court, Docket No. 1981 CV00562). It is my understanding that all further communications regarding Ms. Warren's public records requests will be conducting through Legal Counsel for the parties, Attorney Lanza and the Town's Legal Counsel, Andersen and Krieger, LLP. Conclusion Accordingly, whereas the public records in question are the subject of a dispute in active litigation, I decline to opine any further on this matter. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of the litigation could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Elizabeth Warren Christina S. Marshall, Esq., Anderson & Kreiger, LLP Mark Lanza, Esq.