Peter Biagetti v. Hull, Town of - Town Clerk (SPR 20201208)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3, 2020 SPR20/1208 James B. Lampke, Esq. Town Counsel Town of Hull 115 North Street Hingham, MA 02043 Dear Attorney Lampke: I have received the petition of Attorney Peter Biagetti of Mintz Levis, Cohn, Ferris, Glovsky & Popeo, PC appealing the response of the Town of Hull (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Biagetti requested several categories of records related to a particular property in the Town, and actions taken by Town Planning Board, Conservation Commission, and Building Department. The Town responded on July 5, 2020, denying the request on the grounds that Attorney Biagetti enjoys a unique right of access to the records due to pending litigation between his clients and the Town. Unsatisfied with this response, Attorney Biagetti petitioned this office and this appeal, SPR20/1208, 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 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). 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

James Lampke, Esq. SPR20/1208 Page 2 August 3, 2020 Current Appeal In its July 5, 2020 response, the Town indicates that it is denying the request due to pending litigation, pursuant to which the requestor possesses a unique right of access to the requested records. 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 the Town’s July 5th response, the Town references a pending Superior Court case, Town of Hull v. McDevitt, et al, 1983CV01230, in which the Town is the plaintiff and Attorney Biagetti’s clients are defendants. In a July 29, 2020 supplemental response, the Town explained that a preliminary injunction has been issued in this matter, and the case remains pending. The Town additionally states that related matters are pending before the Zoning Board of Appeals, the State Building Code Appeals Board, and the Department of Environmental Protection. In his appeal petition, Attorney Biagetti disputes the Town’s assertion that the requested records relate to the pending Superior Court litigation, and that the requestors have a unique right of access to the records through that litigation. However, the requests seek records that specifically pertain to the site owned by the trustees that is the subject of the dispute, and other records relating to similar enforcement actions taken by Town authorities. Accordingly, whereas the requested records relate to the subject matter of pending litigation between the Town and the requestor, I find these records are the subject of dispute in active litigation. Therefore, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(1); Town of Hull v. McDevitt, et al, Plymouth Superior Court, Civil Action No. 1983CV01230. Please note that a change in the status of this litigation could impact the applicability of 950 C.M.R. 32.08(2)(b)(1).

James Lampke, Esq. SPR20/1208 Page 3 August 3, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Peter Biagetti, Esq., Mintz Levis, Cohn, Ferris, Glovsky & Popeo, PC