G. Michael Besse v. Onset Water Department/Fire District (SPR 20191368)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 24, 2019 SPR19/1368 Melissa Goodell Records Access Officer Onset Fire District 15 Sand Pond Road, P.O. Box 44 Onset, MA 02558 Dear Ms. Goodell: I have received the petition of G. Michael Besse appealing the response of the Onset Fire District (District) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Besse requested a copy of an identified lease for a solar field as well as correspondence between attorneys regarding certain solar fields. The District initially provided a copy of a lease and denied access to responsive correspondence under the attorney client privilege. Tl,e 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); 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 a July 1, 2019 response the District indicated that it provided a copy of a lease on June 26, 2019 for a fee of $15.00 and also cited the attorney-client privilege to withhold responsive 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

Melissa Goodell SPR19/1368 Page 2 July 24, 2019 correspondence between attorneys. In his appeal petition Mr. Besse indicates "I have requested copies of a lease between the Onset Fire District and GLC Dewlight, LLC to construct a solar farm on the District[']s water shed area and I was denied a complete and signed copy of the lease. [T]hey say they do not have a copy of the lease." He also notes "I have requested a copy of the correspondence between counsel for the Prudential Committee and the counsel for the Board of Water Commissioners as to who has the authority to allow GLC Delight[,] LLC to construct a solar farm on the District water shed area and was denied a copy." It does not appear that Mr. Besse is appealing the fee for producing a copy of a lease. Subsequent to the opening of this appeal, Attorney Peter Sumners provided a supplemental response on behalf of the District on July 19, 2019. In this response Attorney Sumners indicates that with respect to the request for a lease," ... the District provided Mr. Besse with a copy of a lease with Borrego Solar Development, the only solar company to which it currently leases land. At that time, the District was unable to locate a signed copy of any solar project lease, so it provided Mr. Besse with an unsigned copy. Since then, the District has located a signed copy of two leases with Borrego related to this project, which are materially similar but apply to different parcels ofland in the area. Copies of these signed leases are attached hereto and are being provided to Mr. Besse along with this response letter." Attorney Sumners also notes "[t]he District is not aware of any lease with a 'GLC Dewlight, LLC'. As such, it is not in possession of any additional records responsive to Mr. Besse's request." With regard to the requested correspondence between attorneys, Attorney Sumners asse1is " ... any such records are protected by the attorney-client privilege and/or attorney work product doctrine, except that the Board of Water Commissioners has voted to release the lease opinion letter regarding these leases from the Board's counsel, Gay & Gay, P.C. A copy of this lease opinion letter is attached hereto and is being provided to Mr. Besse along with this response letter." Attorney Sumners also notes that any additional responsive correspondence is being withheld under the attorney-client privilege and/or work product doctrine. Whereas the District's July 19111 supplemental response includes copies of additional signed leases, addresses Mr. Besse's contention regarding a lease with GLC Dewlight, LLC, and provides the lease opinion letter, I will consider this appeal closed. Mr. Besse may appeal the substantive nature of the District's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: G. Michael Besse Peter C. Sumners, Esq.