Sandra R. Austin v. Hopedale, Town of (SPR 20202300)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2020 SPR20/2300 Lisa Pedroli Town of Hopedale 72 Hopedale Street P. O. Box 7 Hopedale, MA 01747 Dear Ms. Pedroli: I have received the petition of Sandra Austin, Esq. of the Law Offices of Sandra Rennie Austin, on behalf of Jon Delli Priscoli, appealing the response of the Town of Hopedale (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 22, 2020, Mr. Priscoli requested: Copies of all correspondence (including email, texts, or other forms of communications including using non-government emails) to and from [an identified individual] regarding any dealings from Jon Delli Priscoli and including any companies he owns and their efforts to acquire property in the Town of Hopedale in the last 36 months. This request shall include correspondence of any statements, opinions, issues, concerns, funding, documents to back-up the statements by [the identified individual] . . . We would like all correspondence including his personnel email account he uses for the Town on any and all items related to the efforts by Jon Delli Priscoli’s businesses in Hopedale, this should also include all copies of all drafts [] of his due diligence report he prepared and any comments received on the report[.] The Town provided a response on November 3, 2020, including responsive records in redacted form. The Town claims the records were redacted pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26) (c). Unsatisfied with the Town’s response, Attorney Austin petitioned this office and this appeal, SPR20/2300, was opened as a result. 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 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

Lisa Pedroli SPR20/2300 Page 2 December 8, 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Austin’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 Court 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, Attorney Austin may wish to consider another means of seeking to obtain any existing responsive records. 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); 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. The Town’s November 3rd response In its November 3, 2020 response, the Town enclosed responsive records and indicated that it redacted personal email addresses from the records under Exemption (c). Subsequent to the opening of this appeal, I learned that the Town provided a supplemental response dated December 4, 2020. Attorney Austin may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1).

Lisa Pedroli SPR20/2300 Page 3 December 8, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Sandra Austin, Esq.