Louis Petrozzi v. Walpole, Town of - Town Clerk (SPR 20190727)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecc~ S. Murray Supervisor of Records April 19, 2019 SPR19/727 James Johnson Town Clerk Town of Walpole 135 School Street Walpole, MA 02081 Dear Mr. Johnson: I have received the petition of Louis Petrozzi on behalf of Wall Street Development Corp. appealing the response of the Town of Walpole (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 24, 2019 Mr. Petrozzi requested" ... copies of the documents outlined in the Secretary of State's order of July 24, 2018." The requested records include copies of "all personal emails, correspondence, communications or any other material communicated to, from or between" members of certain Town boards, commissions, and other offices. Previous appeal This request is related to the subject of a previous appeal. See SPRl 8/1015 Determination of the Supervisor of Records (July 24, 2018). In my July 24th determination I ordered the Town to provide Mr. Petrozzi with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Town responded on August 13, 2018 and September 3, 2018. The Town responded to the above-referenced February 24th request on February 26, 2019. Mr. Petrozzi appealed and SPR19/727 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

James Johnson SPR19/727 Page 2 April 19, 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. Current appeal Mr. Petrozzi's February 24th request appears to seek the same records that were at issue in SPR18/I015. In his current appeal petition Mr. Petrozzi indicates "[t]o date the Town has refused to produce the documents requested, despite being ordered to do so by your office in a letter dated July 24, 2018." He further notes" ... again the Town has been totally unresponsive to this request, producing no emails that are responsive to the request." The Town's previous responses In response to the order in SPR18/1015, the Town provided responses on August 13th and September 3rd that included additional responsive records. In its August 13th response Attorney Michele Randazzo of KP Law, P. C. indicates that it " ... has responded timely to each of your requests, and provided responsive records on numerous occasions, often at no charge." She further notes "[i]n responding to your prior requests, the Town asked that relevant board and committee members provide any email communications sent or received from their personal email addresses that were responsive to your request, to ensure that our responses properly included any email communications that were not otherwise captured on the Town's computer systems. You were provided with any such emails." Attorney Randazzo also explained "[i]n light of the Supervisor's July 24, 2018 determination, the Town again asked its relevant board and committee members to confirm whether all relevant emails had been provided, and/or whether any additional responsive records existed. As the time periods of your various requests for email communications have expanded with each request, one such email was not originally identified as being with the relevant time period of your most recent request. That email is enclosed herein." The Town provided additional responsive emails on September 3, 2018. I understand that the Town claimed the attorney-client privilege to withhold certain responsive records in previous responses to Mr. Petrozzi, including on November 1, 2017 and February 16, 2018. The November 1st response contained a privilege log. The Town's most recent response On February 261h Attorney Randazzo responded to Mr. Petrozzi on behalf of the Town by indicating" ... the Town has responded to your prior public records requests fully and in

James Johnson SPR19/727 Page 3 April 19, 2019 compliance with applicable provisions oflaw, despite your assertions to the contrary. Nonetheless, attached as a courtesy are copies of information sent to you previously, in accordance with the Supervisor's letter of July 24, 2018, which were directed to the email address contained on the public records requests made on Wall Street Development Corp's letterhead." In a February 2?1h email to the Town, Mr, Petrozzi asserts that the documents previously provided" ... are in no way responsive to the request for documents outlined in my prior correspondence." He also notes " ... Wall Street is more than certain that the town is in possession of personal emails and other correspondence between board members, town administrator and other parties do exist. In addition, certain members of the planning board and zoning board have publicly declared that they did not have to produce these emails on their personal email accounts." Existence ofr ecords; basis of appeal The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the issues raised in Mr. Petrozzi's appeal regarding the existence of additional responsive records, I find the Town must clarify whether additional responsive records exist that have not been provided or accounted for in its prior responses that assert the attorney-client privilege and/or any other exemptions. See G. L. c. 66, § lO(a)(ii), (b )(ii). Although Mr. Petrozzi indicates in his appeal that the Town "has been totally unresponsive to this request," it appears the Town has provided records and withheld others. Mr. Petrozzi must clarify whether he objects to the withholding ofrecords as described in the Town's previous responses. See 950 C.M.R. 32.0S(l)(f) (all petitions for appeal shall be in writing and shall specifically describe the nature of the requestor's objections to the response or failure to provide a timely response). This office encourages the Town and Mr. Petrozzi to communicate further to facilitate resolving the issues that remain outstanding. Conclusion Accordingly, the Town is ordered to provide Mr. Petrozzi 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.

James Johnson SPR19/727 Page4 April 19, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Louis Petrozzi Michele Randazzo, Esq.