Gerard F. Mackin, Jr. v. Weymouth, Town of - Town Clerk (SPR 20222126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 27, 2022 SPR22/2126 Kathleen Deree Town Clerk Town of Weymouth 75 Middle Street Weymouth, MA 02189 Dear Ms. Deree, I have received the petition of Gerard Mackin appealing the response of the Town of Weymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2022, Mr. Mackin requested, “… all communications among the councilors about the cease and desist order on 450 Green St.” Mr. Mackin requested the same records on August 25, 2022. See SPR22/2047 Determination of the Supervisor of Records (September 21, 2022). The Town responded on September 8, 2022. Unsatisfied with the response, Mr. Mackin petitioned this office and this appeal, SPR22/2126, 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. 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. 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

Kathleen Deree SPR22/2126 Page 2 September 27, 2022 The Town’s September 8th response In its September 8, 2022 response, the Town cited attorney-client privilege and pending litigation to withhold the requested records. 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. The Town has advised that there are two lawsuits, O’Brien, Gerald, et al. v. Board of Zoning Appeals, et. al. pending at the Land Court, Docket No. 21MISC000603 and Kelly, Kevin, et al. v. Board of Zoning Appeals, et. al. pending at the Land Court, Docket No. 22MISC000121. In a conversation between a Town representative and a senior attorney of the Public Records Division, the Town confirmed that the requested records are related to the proceedings. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I also decline to opine on the applicability of attorney-client privilege to the requested records. 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, Manza Arthur Supervisor of Records cc: Gerard Mackin Marsha Geronaitis