Laura Wing v. Sandwich, Town of (SPR 20220354)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 25, 2022 SPR22/0354 Taylor D. White Records Access Officer Town of Sandwich 145 Main Street Sandwich, MA 02563 Dear Mr. White: I have received the petition of Laura Wing appealing the response of the Town of Sandwich (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 9, 2022, Ms. Wing made the following request: 11 Sales were used by the assessor to compute the assessed value of [her] home. . . . In January, [her] property value went up by $266,000. [She] want[s] a report showing the data used from these sales and the algorithms used with this data that justifies such an unprecedented value increase in [her] home. The Town responded on February 12, 2022, providing responsive records and stating that it was withholding others. Unsatisfied with the Town’s response, Ms. Wing 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 agency or municipality 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. Att’y 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 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

Taylor D. White SPR22/0354 Page 2 February 25, 2022 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. Current Appeal In her appeal petition, Ms. Wing objects to the Town’s withholding of the algorithms she requested. In addition, Ms. Wing contends that she is “now responsible for an unfair tax burden shared with other home owners,” and in an email to this office subsequent to the opening of this appeal, she states that she “want[s] a lay person’s explanation of [her] 2022 assessed value that justifies a $266,000 increase over [her] 2021 assessed value.” The Town’s February 12th and February 22nd Responses In its February 12th response, the Town provided Ms. Wing with responsive records, and in its February 22nd response, explained that it is withholding the requested algorithms pursuant to Exemption (g) of the Public Records Law. See G. L. c. 4, § 7(26)(g). Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit G. L. c. 4, § 7(26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not submitted as required by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit.

Taylor D. White SPR22/0354 Page 3 February 25, 2022 In its February 22nd response, the Town argues the following under Exemption (g): The algorithm is a protected trade secret, as that algorithm is part of the proprietary software of Paul S. Kapinos & Associates, Inc. (hereinafter “PK Valuation Group”). PK Valuation Group has licensed its proprietary software for the Town’s use in connection with property valuations, voluntarily as part of an arms-length commercial transaction. The algorithms in the software general data inherently informs policy development in several areas, including but not limited to: the terms of the assessment and valuation of properties and subsequent collection of property taxes; whether interim re-evaluations of properties in town are required; and budget determinations based upon assessed values of property in Town and the anticipated revenue generated from property tax collection. Furthermore, PK Valuation Group voluntarily provides this software on condition of confidentiality, as evidenced by the Non-Disclosure agreement. . . . Finally, this proprietary information was neither submitted to the Town by law, nor as a condition of receiving a governmental benefit. Despite the Town’s response, I find the Town has not met its burden to withhold the requested algorithm pursuant to Exemption (g). Specifically, the Town has not demonstrated that the information was not submitted as a condition of receiving a government contract or benefit. No Duty to Answer Questions, Conduct Research In her appeal petition, Ms. Wing also seeks an explanation of how the assessed value of her home was calculated. Please be advised that 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). However, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Additionally, please note that where Ms. Wing challenges the assessed value of her home, and claims that she is subject to an unfair tax burden, these matters are outside the jurisdiction of this office. Ms. Wing is advised that she may wish to seek advice from private legal counsel to address these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Wing with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Taylor D. White SPR22/0354 Page 4 February 25, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Wing