Brian Carroll v. Norwell, Town of - Office of the Town Clerk (SPR 20220430)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2022 SPR22/0430 Patricia Anderson Town Clerk Town of Norwell 345 Main Street Norwell, MA 02061 Dear Ms. Anderson: I have received the petition of Brian Carroll appealing the response of the Town of Norwell (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 4, 2022, Mr. Carroll requested six categories of records relating to communications between the Town’s Select Board and certain legal counsel. The Town provided its initial response on February 16, 2022. Previous Fee Petition The records sought by Mr. Carroll were the subject of a previous fee petition. See SPR22/0407 Supervisor of Records Determination (February 23, 2022). There, I held that the Town may assess a fee in excess of $25 per hour and granted additional time for the Town to respond to Mr. Carroll’s request. Concurrent to that petition and in relation to the Town’s initial February 16, 2022 response, Mr. Carroll petitioned this office and this appeal, SPR22/0430, was opened as a result. 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. Carroll’s interest in obtaining the reports shall have no bearing on the public nature of the record. 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

Patricia Anderson SPR22/0430 Page 2 March 4, 2022 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. 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. The Town’s February 16th Response On February 16, 2022, the Town stated: Firstly, other than the opinions that you have already been provided by Attorney Lauren Goldberg of KP Law, PC, the opinion by Attorney Robert W. Galvin of Galvin & Galvin, PC (Town Counsel) which was detailed again in an affidavit filed in connection with Brian Carroll, et al. v. Norwell Select Board, et al, Land Court Department, Docket No. 21 MISC 000637 by me, and in an email chain from April 28, 2021 with you, the Town of Norwell declines to provide you any further written or electronic communications by or between any member of the Select Board and [four named attorneys]. To be clear, there are email communications by and between the attorneys and the Town Administrator and members of the Select Board…relating to the topics and opinions rendered and also with respect to the pending litigation [Mr. Carroll] has commenced during the time frame since the submission of the article and through the present date. Current Appeal In his current appeal, Mr. Carroll stated: On December 22, 2022, the Requestor (Mr. Carroll) and nine other Plaintiffs filed a lawsuit against Mr. Graham, Ms. Allen, and the Norwell Select Board seeking an order compelling them to comply with their legal obligations as directed by the May 2021 action of the Norwell Town Meeting. The documents sought in this

Patricia Anderson SPR22/0430 Page 3 March 4, 2022 Public Records Request are not material to the issues presented in that litigation, and will not be submitted to the Court in connection with such litigation. In a subsequent telephone conversation on March 2, 2022 between Town counsel and a staff attorney in the Public Records Division, I learned that the records responsive to Mr. Carroll’s requests are substantially related to a matter involved in active litigation. Pending litigation 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. This office has confirmed that Mr. Carroll has filed a complaint against the Town’s Select Board and that litigation is still pending. See Brian Carroll, et al. v. Norwell Select Board, et al, Land Court Department, Docket No.21 MISC 000637. 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Carroll Robert W. Galvin, Esq.