Raymond H. Tomlinson v. Harwich, Town of (SPR 20211085)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1085 Anita N. Doucette Town Clerk Town of Harwich 732 Main Street Harwich, MA 02645 Dear Ms. Doucette: I have received the petition of Attorney Raymond Tomlinson appealing the response of the Town of Harwich (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 12, 2021, Attorney Tomlinson requested certain “reports for the last 4 years,” explaining “[t]he Town is required to submit annually to the [Alcoholic Beverages Control Commission (ABCC)] a list of all enforcement actions taken against any licensee. It is usually a summary report.” The Town responded on April 26, 2021, providing no records and stating that “it is the Town’s position that [Attorney Tomlinson’s] request does not constitute a public records request.” Unsatisfied with the Town’s response, Attorney Tomlinson appealed, and this case 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); 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. If there are any fees associated with a response a written, good faith estimate must be 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

Anita N. Doucette SPR21/1085 Page 2 May 7, 2021 provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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 Tomlinson’s interest in obtaining the requested records shall have no bearing on the public nature of the record. Where Attorney Tomlinson seeks the reports 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 Tomlinson may wish to consider another means of seeking to obtain any existing responsive records. The Town’s April 26, 2021 Response In its April 26th response, the Town advised that there is “litigation pending in U.S. District Court, 3137, LLC. Inc., et al. v. Town of Harwich, et al., U.S District Court, C.A. No. 21-cv-10473, and Barnstable County Superior Court, Ember Pizza, Inc. et al. v. Town of Harwich, et al., C.A. No. 2172CV00112, in which [Attorney Tomlinson] represent[s] the plaintiffs in the pending court cases. It is clear that the documents requested relate specifically to the matters raised in the pending litigation.” 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.

Anita N. Doucette SPR21/1085 Page 3 May 7, 2021 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 Tomlinson 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Raymond Tomlinson, Esq.