Thomas J. Palleria v. Swampscott, Town of - Town Administrator (SPR 20211307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 10, 2021 SPR21/1307 Sean Fitzgerald Town Administrator Town of Swampscott 22 Monument Avenue Swampscott, MA 01907 Dear Mr. Fitzgerald: I have received the petition of Thomas J. Palleria appealing the nonresponse of the Town of Swampscott (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 30, 2021, Mr. Palleria requested “a full and detailed accounting for all rail trail expenses to date” and “copies of all appraisals done to date related to the rail trail in Swampscott.” The Town provided a response on May 25, 2021. Unsatisfied with the Town’s response, Mr. Palleria petitioned this office and SPR21/1307 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 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. 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

Sean Fitzgerald SPR21/1307 Page 2 June 9, 2021 The Town’s May 25th response In its May 25, 2021 response concerning rail trail expenses, the Town stated that to “increase transparency on this project and provide information to members of the community, the Town has created a webpage with rail trail related documents of interest to the public.” The Town further explained it “previously provided [Mr. Palleria] with detailed invoices relating to rail trail related costs in response [to Mr. Palleria’s] public records request…The Town has also included with this supplemental response a download from the Town’ s financial management software itemizing the expenses related to the Rail Trail project.” In the May 25th response concerning appraisals, the Town claimed, “[w]ith respect to appraisals completed on behalf of the Town of Swampscott related to the rail trail project, given the ongoing nature of the project, such appraisal report is being withheld at this time pursuant to exemption (i) of the Public Records Law. The Town does have an appraisal report conducted related to the rail trail project.” In Mr. Palleria’s appeal to this office on May 25, 2021, he claimed the Town has “failed to provide a full and detailed accounting” of rail trail expenses to date. In addition, Mr. Palleria’s said the Town has “not clarified what documents they possess which they are claiming an exemption” and “what specific documents they possess that they are withholding.” Exemption (i) Exemption (i) applies to: appraisals of real property acquired or to be acquired until (1) a final agreement is entered into; or (2) any litigation relative to such appraisal has been terminated; or (3) the time within which to commence such litigation has expired G. L. c. 4, § 7(26)(i). The purpose of Exemption (i) is to provide governmental entities engaged in the acquisition of real property, either through a purchase or an eminent domain proceeding, the same degree of confidentiality that is afforded to private parties. The exemption provides governmental agencies with a temporary grant of confidentiality while engaged in the acquisition of real property. See Coleman v. Boston Redevelopment Auth., 61 Mass. App. Ct. 239, 241 (2004). Under Exemption (i), the Town asserts that “Exemption (i) permits the Town to withhold appraisals of real property acquired or to be acquired until a final agreement is entered into; or any litigation relative to such appraisal has been terminated; or the time within which to commence such litigation has expired. Accordingly, given the status of the Rail Trail Project in the Town, such appraisal report will be withheld from disclosure at this time.” Although Exemption (i) permits the withholding of an appraisal, it is unclear whether

Sean Fitzgerald SPR21/1307 Page 3 June 9, 2021 segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Records in existence The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). If the Town does possess requested records and intends to withhold portions of the records pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). In light of the issues raised by Mr. Palleria’s appeal regarding the existence of additional responsive records, I find it is unclear whether additional responsive records exist. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Mr. Palleria with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas J. Palleria