David Calhoun v. Weston, Town of - Town Clerk (SPR 20210861)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 16, 2021 SPR21/0861 Deborah Davenport Town Clerk Town of Weston 11 Town House Road Weston, MA 02493 Dear Ms. Davenport: I have received the petition of David Calhoun appealing the response of the Town of Weston (Town) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On March 26, 2021, Mr. Calhoun requested the following records: “On Feb. 5, 2019, [named person] received an email from the town manager containing legal advice from town counsel about the timeframe on whether the selectmen would exercise a right of first refusal on the land at [named address]. According to the disposition agreement, [named person] forwarded the legal advice to his family … [and] any and all emails sent or received from [named person] town email account during the month of September 2017.” The Town responded on April 2, 2021. Unsatisfied with the Town's response, Mr. Calhoun appealed and SPR21/0861 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 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

Deborah Davenport SPR21/0861 Page 2 April 16, 2021 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 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, Mr. Calhoun’s interest in obtaining the records shall have no bearing on the public nature of the record. Whereas, Mr. Calhoun 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, Mr. Calhoun may wish to consider another means of seeking to obtain any existing responsive records. The Town’s April 2nd Response In its April 2nd response, the Town stated, “… the Town does not consider your correspondence to be a request for public records under the Public Records Law pursuant to 950 CMR 32.06(1)(g). As you know, you are involved in an ongoing administrative proceeding pending before the Housing Appeals Committee that involves the Town and to which the records requested pertain. See 104 Stony Brook, LLC v. Weston Zoning Board of Appeals, HAC Docket No. 2017-14.” The Town further asserted, “…. given the ongoing pending Housing Appeals Committee matter, which remains pending at this time, your … request … does not comprise a public record request and the Town is not obligated to respond to same, under the provisions of the Public Records Law.” 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.

Deborah Davenport SPR21/0861 Page 3 April 16, 2021 In a communication between a Town representative and a staff attorney, the Town confirmed that the matter is currently pending before the Housing Appeals Committee. See 104 Stony Brook, LLC v. Weston Zoning Board of Appeals, HAC Docket No. 2017-14. In light of the pending matter, I decline to opine on this appeal 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: David Calhoun