Michael Walsh, Esq. v. Rockport, Town of (SPR 20201723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2020 SPR20/1723 Patricia E. Brown Town Clerk Town of Rockport 34 Broadway Rockport, MA 01966 Dear Ms. Brown: I have received the petition of Michael Walsh, Esq. of Walsh & Walsh, LLP appealing the response of the Town of Rockport (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on August 3, 2020, Attorney Walsh requested, “ … Town and Department of Public Works … spreadsheet(s) which document[s] the commercial use permits for Rockport beaches ... for year 2020.” Unsatisfied with the Town’s response, Attorney Walsh appealed, and SP20/1723 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, § l0A(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). Status of the requestor; reason for the request 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 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

Patricia E. Brown SPR20/1723 Page 2 September 29, 2020 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of ----------------------- Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Walsh’s interest in obtaining the requested records shall have no bearing on the public nature of the record. Whereas, Attorney Walsh seeks the records for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Attorney Walsh may wish to consider another means of seeking to obtain any existing responsive records. The Town’s August 24, 2020 response In its August 24th response, the Town indicated the records related to “ongoing litigation brought by Back Beach Neighbors Committee pending in U.S. District Court…” 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. A Town representative confirmed in a telephone conference with a staff attorney of the Public Records Division that this matter is pending before the United States District Court (D. Mass) Back Beach Neighbors Committee v. Town of Rockport, C.A. 20-11274-NMG and that Attorney Walsh’s client is involved in the pending litigation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Order Accordingly, I will now consider this administrative appeal closed. 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). If Attorney Walsh is not satisfied with the resolution of this administrative appeal, please be advised

Patricia E. Brown SPR20/1723 Page 3 September 29, 2020 that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Walsh, Esq.