Timothy Burke v. Dennis, Town of - Town Clerk (SPR 20210174)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 5, 2021 SPR21/0174 Theresa Bunce Town Clerk Town of Dennis 685 Route 134 South Dennis, MA 02660 Dear Ms. Bunce: I have received the petition of Timothy J. Burke, Esq. of Burke & Associates appealing the response of the Town of Dennis (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, on December 29, 2020 Attorney Burke requested, numerous documents from the Town. Unsatisfied with the Town’s response, Attorney Burke appealed, and SPR21/0174 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 in the general public. The Public Records Law does not distinguish between requestors. Access 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

Theresa Bunce SPR21/0174 Page 2 February 5, 2021 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 Burke’s interest in obtaining the requested records shall have no bearing on the public nature of the record. Where Attorney Burke seeks the report 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 Burke may wish to consider another means of seeking to obtain any existing responsive records. The Town’s January 14, 2021 response In its January 14th response, the Town advised through its counsel, Michele E. Randazzo of KP Law, that there is litigation pending and “that the documents requested relate specifically to the matters raised in the newly-filed litigation in which Attorney’s Burke’s firm represents the Plaintiff.” The litigation is known as Timothy J. Burke, As Trustee of the TVB Trust v. Nicholas Mayo a/k/a Nick Mayo, Docket No. 2084CV03028, pending in the Suffolk Superior 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. In light of the pending matter, I decline to opine on these matters at this time. See 950 C.M.R. 32.08(2)(b). 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). Conclusion Accordingly, I will now consider this administrative appeal closed. If Attorney Burke 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, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Theresa Bunce SPR21/0174 Page 3 February 5, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy J. Burke, Esq.