Karen M. Tonelli v. Gill, Town of - Town Clerk (SPR 20220721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 7, 2022 SPR22/0721 Ray Purington Town Administrator Town of Gill 325 Main Road Gill, MA 01354 Dear Mr. Purington: I have received the petition of Karen M. Tonelli, on behalf of the Town of Montague (Montague), appealing the response of the Town of Gill (Gill) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2022, Oliver Beane, on behalf of Montague, requested, among other items, a copy of an appraisal report “received by the Gill Board of Assessors from FirstLight relative to real estate owned by FirstLight MA Hydro LLC located in the Towns of Gill and Montague regarding valuation for the FY 2022 tax period.” Previous Appeal This request was the subject of a previous appeal. See SPR22/0177 Supervisor of Records Determination (February 4, 2022). In my February 4th determination, I closed SPR22/0177 in light of the February 2, 2022 supplemental response provided by an attorney for FirstLight MA Hydro LLC (FirstLight). Unsatisfied with the supplemental response, Ms. Tonelli 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. 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

Ray Purington SPR22/0721 Page 2 April 7, 2022 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In her appeal petition, Ms. Tonelli contends “that the Gill assessors never requested this information under Section 38D and therefore this document was not produced in response to a municipal request.” The Town of Gill’s Response In its January 20, 2022 response, Gill states that it is withholding the responsive appraisal pursuant to Exemption (a) of the Public Records Law and G.L. c. 59, §§ 38D and 52B. In a letter to this office, Montague, and Gill on April 5, 2022, an attorney for FirstLight writes in support of Gill’s claim to withhold the responsive appraisal pursuant to Exemption (a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

Ray Purington SPR22/0721 Page 3 April 7, 2022 G. L. c. 59, § 38D provides in pertinent part: A board of assessors may request the owner or lessee of any real property to make a written return under oath within sixty days containing such information as may reasonably be required by it to determine the actual fair cash valuation of such property. G. L. c. 59, § 38D. Further, G. L. c. 59, § 52B provides in pertinent part: All information collected pursuant to section . . . 38D . . . of this chapter shall be open to the inspection of the assessors, the commissioner, the deputies, clerks and assistants of either the assessors or the commissioner and such other officials of the commonwealth or of its political subdivisions who have occasion to inspect such information in the performance of their official duties, but to no other person except by order of the appellate tax board or a court, except that if the assessor bases a valuation of an assessed owner’s real or personal property, in whole or in part, on a comparable sale, or sales, the assessor shall provide any market data relating to such comparable sale or sales to the assessed owner of the property or his designated representative upon request. G. L. c. 59, § 52B. In its January 20th response, Gill argues that the responsive record, “as an appraisal reflecting the full and fair cash value of FirstLight’s property, is intended to provide the Assessors ‘such information as may reasonably be required . . . to determine the actual fair cash valuation of such property’ (G. L. c. 59, § 38D).” In its April 5th letter, FirstLight provides copies of its November 15, 2021 email correspondence with Gill, in which FirstLight indicates that it intends to provide the appraisal to Gill, and Gill states that “the appraisal will be kept confidential” under G. L. c. 59, § 52B. Based on the information provided by Gill and FirstLight, I find that Gill has demonstrated that the responsive records are the type contemplated under G. L. c. 59, §§ 38D and 52B. Accordingly, I find that Gill has met its burden to withhold the responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. If Montague 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, §§ 10(b)(ix), 10A(c) -- (pursuing administrative appeal does not limit availability of judicial remedies).

Ray Purington SPR22/0721 Page 4 April 7, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Karen M. Tonelli Thaddeus Heuer, Esq.