G. Michael Besse v. Onset Water Department/Fire District (SPR 20191556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2019 SPR19/1556 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, § 1O A; 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 ce1iain solar fields. Previous appeal This request was the subject of a previous appeal. See SPR19/1368 Determination of the Supervisor of Records (July 24, 2019). In my July 241h determination I closed the appeal in light of the District's July 19th supplemental response that included copies of additional records and addressed Mr. Besse's contention regarding a specific lease. Mr. Besse appealed the District's July 19th response and SPRl 9/1556 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, § 1O A( 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 withi11 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 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 SPR19/1556 Page 2 August 19, 2019 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 The District initially provided a copy of a lease and denied access to responsive correspondence under the attorney-client privilege. On July 19th Attorney Peter Sumners, on behalf of the District, submitted a response that explains 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 of land 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 noted "[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 noted in the July 19th response that" ... 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 noted that any additional responsive correspondence is being withheld under the attorney-client privilege and/or work product doctrine. In his appeal dated August 5, 2019 Mr. Besse indicates "I am asking for an appeal of the decision of the Onset Fire Districts not to release Attorney Sumners['] opinion to the Prudential Committee to me." He asserts that "[t]he Prudential Committee and the Board of Water Commissioners are elected officials of the Onset Fire District and their records in most cases are public. The Board of Water Commissioners has released Attorney Gay's decisions. The Prudential Committee appears to have told the Keeper of records for the district not to release their records. There does not seem to have been any lit[i]gation started between the Board of Water Commissioners and the Prudential Committee who both serve the same fire district so I do not see how the chapters listed apply at this time[.]" Subsequent to the opening of this appeal, Attorney Sumners provided a supplemental response on behalf of the District on August 9th. In this response Attorney Sumners indicates, in paii, "[w]ith regard to the specific request made by Mr. Besse in his most recent appeal ... please note I (Attorney Sumners) did not issue any formal, written lease opinion letter to the Prudential Committee regarding the solar project corresponding to the lease opinion letter from Gay & Gay, P.C. As such, the District is not in possession of any record which would be the

Melissa Goodell SPR19/1556 Page 3 August 19, 2019 subject of Mr. Besse's most recent appeal." Attorney Sumners fmiher notes "[t]o the extent that Mr. Besse's August 5, 2019 appeal could be construed to extend to other communications from this office to the District and/or its boards regarding the solar panel project, I note that confidential communications between public officers and employees and governmental entities and their legal counsel undertaken for the purpose of obtaining legal advice or assistance are protected under the normal rules of the attorney-client privilege and are exempt from disclosure under the [P]ublic [R]ecords [L]aw. See Suffolk Construction Co., Inc. v. Division of Capital Asset Management, 449 Mass; 444, 446-48 (2007)." . Whereas the District's August 9th supplemental response provides additional information regarding the existence of the record at issue in this appeal, specifically an opinion from Attorney Sumners to the Prudential Committee, 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). It should be noted that the duty to comply with requests for records extends only 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), (b)(ii). Sincerely, Rebecca S. Murray Supervisor of Records cc: G. Michael Besse Peter C. Sumners, Esq.