Thomas J. Palleria v. Swampscott, Town of - Town Administrator (SPR 20191469)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe11>isor of Records August 7, 2019 SPR19/1469 Sean Fitzgerald Town Administrator Town of Swampscott 23 Monument A venue Swampscott, MA O1 907 Dear Mr. Fitzgerald: I have received the petition of Thomas Palleria appealing the response of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 8, 2019, Mr. Palleria requested among other items a" ... copy of the appraisal used to suppo1i the $100 dollar offer to National Grid for their land rights as voted on by the Board of Selectmen on Jan 30th 2019 and filed with the Essex Registry of Deeds #178, Book 37335 and Page 58." The Town provided a response denying access to responsive records pursuant to Exemption (i) of the Public Records Law. G. L. c. 4, § 7(26)(i). Unsatisfied with the Town's response, Mr. Palleria petitioned this office and this appeal SPR19/1469, was opened as a result. It appears Mr. Palleria is only appealing item 3 of his original public'records request. 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, § 1O (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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Sean Fitzgerald SPRl 9/1469 Page 2 August 7, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Tile Town's response In its response, the Town states that it" ... is withholding appraisals responsive to item[] [3] ... pursuant to Exemption (i) ...." The Town explains that "Exemption (i) permits [it] to withhold appraisals of real property acquired or to be acquired until a final agreement is entered into; or any litigation relative to such appraisal has been terminated; or the time within which to commence such litigation has expired ...." Exemption (i) Exemption (i) applies to: appraisals of real prope1iy acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G. L. c. 4, § 7(26)(i). The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private paiiies. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real prope1iy. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239,241 (2004). In his appeal petition, Mr. Palleria states that" ... I believe the town's exemption to withhold appraisals under section i expired when [the Town] took the land rights via eminent domain on Jan 30 2019." Based on Mr. Palleria's claim, it is unclear whether a final agreement has been reached. The Town is reminded that the provisions of Exemption (i) are alternatives and not requisite conditions. Thus, once one of the three alternatives has occurred, Exemption (i) will no longer serve as a means to withhold the subject appraisal. See Id. at 243-244 (concluding that the clauses of Exemption (i) are disjunctive and not conjunctive). Mr. Palleria further claims that" ... I do not believe land rights (easements) are[] covered under exemption [(i)] as they do not involve the exchange o[f] real prope1iy." Based on Mr. Palleria's claim, I find that it is unclear from the Town's response whether the withheld document is an appraisal ofreal property. The Town must clarify this matter.

Sean Fitzgerald SPRl 9/1469 Page 3 August 7, 2019 Conclusion Accordingly, the Town is ordered to provide Mr. Palleria with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Palleria