Luke H. Legere, Esq. v. Acushnet, Town of - Public Schools (SPR 20210581)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 23, 2021 SPR21/0581 Pamela A. LaBonte Town Clerk Town of Acushnet 130 Main Street Acushnet, MA 02743 Dear Ms. LaBonte: I have received the petition of Luke H. Legere, Esq. of McGregor & Legere appealing the response of the Town of Acushnet (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On February 1, 2021, Attorney Legere requested various records from the Town. The Town responded on February 16, 2021. Unsatisfied with the Town's response, Attorney Legere appealed and SPR21/0581 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

Pamela A. LaBonte SPR21/0581 Page 2 March 23, 2021 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, Attorney Legere’s interest in obtaining the records shall have no bearing on the public nature of the record. Where Attorney Legere seeks the record 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 Legere may wish to consider another means of seeking to obtain any existing responsive records. The Town’s February 16th Response In its February 16th response, the Town by its counsel, Jeffrey T. Blake of KP Law, stated that the following cases are pending in Bristol Superior Court: 1. P.J. Keating Company v. Town of Acushnet et al., Docket No. 2073CV00561; 2. Town of Acushnet v. P.J. Keating Company, Docket No. 2073CV00565 3. P.J. Keating Company v. Town of Acushnet et al., Docket No. 2073CV00603; 4. P.J. Keating Company v. Town of Acushnet et al., Docket No. 2073CV00009. 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 a telephone conference between a Town representative and a staff attorney, the Town confirmed that the requested records are the subject matters of the pending lawsuits.

Pamela A. LaBonte SPR21/0581 Page 3 March 23, 2021 In light of the pending matters, 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 these actions could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, ' . ..'d -- fl A . _ . ~ .· . ~ Rebecca S. Murray Supervisor of Records cc: Luke H. Legere, Esq. Jeffrey T. Blake, Esq.