Michael Corsetti v. Manchester-by-the-Sea, Town of - (SPR 20200675)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2020 SPR20/0675 Christina St. Pierre Town Clerk Town of Manchester by the Sea 10 Central Street Manchester by the Sea, MA 01944 Dear Ms. St. Pierre: I have received the petition of Michael Corsetti appealing the response of the Town of Manchester-By-The-Sea (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on April 6, 2020 Mr. Corsetti requested: “All documents including but not limited to emails, reports, draft notes, logs, invoices, meeting minutes, media recordings, relating to the property located at 10 Old Wenham Way, and or applicant Michael Corsetti … Date range of August 1, 2018 – April 6, 2020.” On April 13, 2020, Mr. Corsetti requested: “All building permits issued between the date range of April 13, 2016-April 13, 2020.” On April 21, 2020, the Town, through its Legal Counsel Michele E. Randazzo, of KP Law, P.C., provided a response including a detailed fee estimate and cited Exemption (a) and (d) of the Public Records Law, and attorney-client privilege to withhold the requested records. G. L. c. 4, §7(26)(a), (d). Unsatisfied with the Town’s response, Mr. Corsetti appealed, and SP20/0675 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, § 10A(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, § 10(b)(iv) (written response must “identify 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

Christina St. Pierre SPR20/0675 Page 2 May 4, 2020 any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Town’s April 21st response In the Town's April 21st response the Town informed Mr. Corsetti that it will not waive any applicable fees. The Town further stated that, “[Mr. Corsetti] [has] a pending appeal of a Conservation Commission decision to the Department of Environmental Protection.” Pending litigation 950 C.M.R. 32.06(1)(g) provides in pertinent part: a request for records in which an individual, or representative of the individual has a unique right of access by statutory, regulatory, judicial or other applicable means, shall not be considered a request for public records 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In a telephone conference between a Public Records Division staff attorney and a representative from the Town, the Town confirmed that the administrative appeal is pending before the Massachusetts Department of Environmental Protection. The case name is: “Michael Corsetti, MassDEP File #039-0811 Request for Departmental Action.” Conclusion In light of the pending matter, I decline to opine on this appeal at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of the administrative action could impact the applicability of 950 C.M.R. 32.08(2)(b). If Mr. Corsetti is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § l0(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Christina St. Pierre SPR20/0675 Page 3 May 4, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Corsetti Michele E. Randazzo, Esq.