David Durgin v. Dudley, Town Of - Town Clerk (SPR 20191597)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 22, 2019 SPR19/1597 Greg Balukonis Town Clerk Town of Dudley 71 W Main Street Dudley, MA 01571 Dear Mr. Balukonis: I have received the petition of David Durgin appealing the response of the Town of Dudley (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on July 14, 2019, Mr. Durgin requested the following records: 1. A copy of all Cease and Desist Orders issued by Nelson Burlingame during 2016-2019 2. A copy of all Notice of Violation Fines issued by the Building Department for the Month of March 2019 3. A copy of the Richard Ezold's ( ... Eagle Drive) application for a Special Permit/A ppeal to the ZBA for raising Livestock on prope1iy less than 5 acres, or any Cease and Desist Order and any consequent fines related to this matter. 4. A copy of the Cease and Desist Order for Kim Clinton ... New Boston Road Dudley, Ma for operating an animal kennel filed with the Town clerk, as discussed in the 5/2/19 ZBA Meeting at marker 24:15 5. A copy of the Cease and Desist Order issued to Ryan Simpson, ... Ramshorn Road Dudley, Ma. 6. A copy of all Notice of Violation letters for any resident raising chickens with less than 5 acres of land in 2019 7. A copy of any violation letters, Cease and Desist Orders and fines sent to Michelle and Robe1i Roemer of ... Baker Pond Rd. 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

Greg Balukonis SPR19/1597 Page 2 August 22, 2019 Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1495 Determination of the Supervisor of Records (August 7, 2019). I closed SPRl 9/1495 based on the Town's provision of a supplemental response dated July 25, 2019. Unsatisfied with the Town's response, Mr. Durgin petitioned this office and this appeal, SPR19/1597, was opened as a result. Tlte Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental 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. 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. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Durgin's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Comi has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Durgin may wish to consider another means of seeking to obtain any existing

Greg Balukonis SPR19/1597 Page 3 August 22, 2019 responsive records. The Town's July 251 response " In its July 25, 2019 response, the Town indicates that Mr. Durgin is" ... a plaintiff in a pending action against the Town, captioned Durgin, et al. v. Town of Dudley, et al., Worcester Superior Court Case No. 1985CV00537 ('the Action')." As such, the Town claims that Mr. · Durgin has a unique right of access to the requested records. The Town explains that aside from the fact that Mr. Durgin's public records request is similar to and largely duplicative of his Request to Defendant to Produce Documents (RPD), it has also filed and served a Motion to Dismiss the Action in its entirety. The Town indicates that in its response, it objected to Mr. Durgin's RPD " ... because the documents sought thereby may not be relevant if the Action is dismissed ...." The Town states that "[g]iven the nature of [Mr. Durgin's] requests and the pendency of litigation between [him] and the Town, it is the Town's position that [Mr. Durgin's] request for records is more properly made in the context of the pending litigation." Thus, through discovery which is " ... governed by the Massachusetts Rules of Civil Procedure and any other applicable legal mies/limitations given the nature of the cause of action. Accordingly, given the ongoing civil litigation between [Mr. Durgin] and the Town, [Mr. Durgin's] request does not comprise a public records request and the Town is not obligated to respond to same under the provisions of the Public Records Law." The Town states that should the Court determine that Mr. Durgin is · entitled to these records, it would comply with the determination. The Town states that should the records be considered as a public records request, the records would be exempt under Exemption (d ). The Town asserts that Exemption ( d) applies to records concerning ongoing litigation involving a public body. Citing Lafferty, the Town claims that"' [t]he preparation of and involvement in litigation by a [public body] inherently entails the development of 'policy positions' by that [public body]. .. Further, the [public body] prosecutes a strategy for the litigation, and its 'policy positions' are frequently subject to change and refinement throughout the litigation.' [Lafferty v. Martha's Vineyard Commission, Superior Court, C.A. No. 03-3397, 2004 WL 792712 *3]." The Town also cites Babets and DaRosa, to support its position. The Town claims that the fact that Mr. Durgin" ... has sought the same records in [his] request as in his RPD, it is plain that [he] believes that the records relate to the pending litigation." The Town states that if the Action is not dismissed," ... those records may contain information impacting the Town's litigating position and/or defense strategy in litigation, such that they may be withheld or redacted accordingly." The Town further indicates that while it takes the position that it is not obligated to respond to this request, should the Supervisor of Records determine otherwise, the Town would provide a fee estimate at that time.

Greg Balukonis SPR19/1597 Page 4 August 22, 2019 Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its response, the Town indicated that Mr. Durgin is" ... a plaintiff in a pending action against the Town, captioned Durgin, et al. v. Town of Dudley, et al., Worcester Superior Comi Case No. 1985CV00537 ...." The Town also claimed that the requested records are" ... similar to and largely duplicative of Plaintiffs ... First Request to Defendant Town of Dudley to Produce Documents that [Mr. Durgin] served in the Action ...." Whereas the public records in question are the subject of a dispute in active litigation, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b) (the Supervisor may deny an appeal if, in the opinion of the Supervisor, "the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation"). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b ). Conclusion Accordingly, I will consider this administrative appeal closed. Since.rely, ~~ Rebecca S. Murray Supervisor of Records cc: David Durgin