Alan E. Lipkind v. Provincetown, Town of (SPR 20190599)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 3, 2019 SPR19/599 Darlene Van Alstyne Town Clerk-Primary Records Access Officer Town of Provincetown Town Hall 260 Commercial Street Provincetown, MA 02657 Dear Ms. Van Alstyne: I have received the petition of Alan E. Lipkind, Esq. of Burns & Levinson, LLP, on behalf of a client/plaintiff, appealing the response of the Town of Provincetown (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Lipkind requested copies of records which reference or relate to any part of the structures at 99 Commercial Street. Attorney Lipkind seeks all documents and communications pertaining to an Indemnification Agreement. In a February 20, 2019 response to Attorney Lipkind, the Town's Legal Counsel, Michele Randazzo, Esq. of KP Law, P.C. stated: "[t]he Town has already provided your office with numerous documents related to 99 Commercial Street and the dispute that is the subject of matters presently pending in the Land Court, Deckelbaum v. Carew and Provincetown Zoning Board of Appeals, Land Court 2016MISC00014, and Land Court 2018MISC000512, both in response to public records request(s) as well as in response to request(s) for production of documents or document subpoenas in connection with the ongoing litigation. Given that your firm represents the plaintiff in the above-referenced matters, and that your current request is again for records related to the property and the dispute that is the subject of these pending cases, it is the position that your February 5, 2019 correspondence does not amount to a public records request. Nonetheless, at this juncture, the Town will provide the attached documents voluntarily; any other documents sought should be pursued in accordance with the rules of procedure applicable in the above-referenced court action(s)." 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

Darlene Van Alstyne SPR19/599 Page 2 April 3, 2019 Active 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. In light of the information provided in the Town's February 20th response regarding how the responsive records relate to the subject matter of an active litigation in Land Court, I find these records are the subject of dispute in active litigation. Therefore, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); 2016-MISC-00014; 2018-MISC-000512. It should be noted that a change in the status of these actions could impact the applicability of 950 C.M.R. 32.08(2)(b) (1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Alan E. Lipkind, Esq., Burns & Levinson, LLP Michele Randazzo, Esq., KP Law, P.C.