Celeste DeMarco v. Wellesley, Town of - Town Clerk (SPR 20202017)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 27, 2020 SPR20/2017 Ivria Glass Fried, Esq. Town of Wellesley’s School Department Miyares and Harrington LLP 40 Grove Street, Suite 190 Wellesley, MA 02482 Dear Attorney Fried: I have received your petition on behalf of the Town of Wellesley School Department (Department) seeking relief from its obligation to produce responsive records. G. L. c. 66, § 10(c); see also 950 C.M.R. 32.06(4). As required by law, the Town furnished a copy of this petition to the requestor. Id. The Town’s petitions pertains to requests submitted by Celeste DeMarco on October 5, and October 13, 2020. Subsequent to the opening of this petition, this office received multiple responses from both parties regarding this petition. Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and 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

Ivria Glass Fried, Esq. SPR20/2017 Page 2 October 27, 2020 (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. - The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). In its October 19, 2020, petition, the Town requests “…to be relieved of the obligation to respond to such requests.” The Town states “[s]ince September 16, 2020, Ms. Demarco has filed approximately 11 public records requests with the School Department and the Police Department. The Town seeks relief from responding to requests filed on October 5 and on October 13.” The Town indicates “Ms. Demarco’s recent requests follow a well-established precedent of seeking documents that she created, or which are already within her custody and control. In three of the five requests at issue here, Ms. Demarco, after asking for copies of emails that she originally sent to the Town, offers to provide the Town with the same records that she just requested. Ms. Demarco has instituted a pattern of utilizing the Public Records Law to harass and berate Town employees.” The Town also indicates “…Ms. Demarco has vehemently attacked Town employees. She frequently calls Town employees liars, unethical and incompetent in the context of her public records requests. Ms. Demarco broadcasts her unsubstantiated accusations by copying numerous individuals on her emails…[h]er decision to publicly, and without any support, accuse Town employees of misconduct demonstrates her intent to harass the Town and its employees.” October 5th Requests On October 5th, Ms. DeMarco submitted two separate requests for “[a]ny and all correspondence; and/or memoranda, notes, and the like…” regarding the Town and attorneys at Casner & Edwards, LLP. The first request was submitted to the Wellesley Police Department, and the second was submitted to the Town and specifically asked for communications on March 1st and 2nd, 2018, pertaining to her son, David Lussier, and the entire Hedequist family. The Town states “Attorneys Theiss and Francella represented Ms. Demarco. At the time of the representation, Attorneys Theiss and Francella worked at Casner & Edwards, LLP.” The Town indicates “Ms. Demarco is seeking documents that her attorneys sent to the Town. Ms.

Ivria Glass Fried, Esq. SPR20/2017 Page 3 October 27, 2020 Demarco could easily ask her attorneys for these communications. Filing these requests demonstrates Ms. Demarco’s intent to waste taxpayer money and government resources… [i]f Ms. Demarco wanted the records in an unredacted form, she could easily obtain them from her own counsel and disseminate the records freely.” 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 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, Ms. DeMarco interest in obtaining the communications shall have no bearing on the public nature of the record. Whereas, Ms. DeMarco seeks communications with the town and her own counsel, she 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, Ms. DeMarco may wish to consider another means of seeking to obtain any existing responsive records. Where Ms. DeMarco may obtain responsive records to her request through other means, it is unnecessary to opine on the Town’s petition for relief of the October 5th requests at this time. October 13th Requests On October 13th Ms. Demarco submitted three separate requests to the Town for the following records: “[m]ake available the emails that you have that represent what Ofc. Carasquillo claims in his application for criminal complaint against Mr. Alexander: as the reason he cancelled the acts. [sic] The persistent emails that were ‘harshly worded, outrageous and threatening.’…These are emails which I would have written and would already know about and have possession of, and you are trying to claim that I am not entitled to see these documents. Perhaps I should produce them…” In an email sent to this office and Ms. DeMarco on October 21, 2020, the Town states “...as stated previously, Ms. Demarco created all the documents responsive to the October 13 requests - a fact Ms. Demarco knows given that she offered to provide the requested records to the Town. On October 19, Ms. Demarco informed the Supervisor's office that ‘the Town does not have to produce documents which were created by any Hedequist family member.’ Accordingly, Ms. Demarco has withdrawn the October 13 requests. To the extent one could claim that Ms. Demarco has not withdrawn her request; the Town hereby responds that there are no records responsive to the October 13 requests that Ms. Demarco did not create.”

Ivria Glass Fried, Esq. SPR20/2017 Page 4 October 27, 2020 Whereas the Town has confirmed it does possess any additional records to Ms. DeMarco’s request, it is unnecessary to opine on the Town’s petition for relief of the October 13th requests at this time. Conclusion In light of the above, it is unnecessary to opine on the Town’s petition for relief of its obligation to produce the responsive records. Sincerely, Rebecca S. Murray Supervisor of Records cc: Celeste DeMarco