Christopher Pinardi v. Montague, Town of - Assessor Department (SPR 20222536)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2022 SPR22/2536 Karen Tonelli Director of Assessing Town of Montague One Avenue A Montague, MA 01376 Dear Ms. Tonelli: I have received the petition of Christopher Pinardi appealing the response of the Town of Montague (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 14, 2022, Mr. Pinardi requested: [A]ll documents related to [a named individual’s] abatements filed on Parcel 52- 0-069, 52-0-131, 52-0-118, and 52-0-081 that were given to the members of the Board of Assessors (BOA). This should include, but is not limited to, ALL original documents filed by [the named individual], as well as any other all documents supplied to them by any other source. As per former chair . . . and [named individual] each member of the BOA would [have] received a complete packet of the supporting documents. . . . Additionally, I am requesting proof of the date and time those documents were delivered to the [B]oard members and in what manner they were delivered. On September 20, 2022 and November 8, 2022, the Town responded. As a result of the Town’s responses, Mr. Pinardi petitioned the Supervisor of Records, and this appeal was opened. As this appeal was pending, the Town provided a supplemental response on November 15, 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). 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

Karen Tonelli SPR22/2536 Page 3 November 18, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. The Town’s November 15th Response Subsequent to the opening of this appeal, the Town provided a November 15, 2022 response regarding Mr. Pinardi’s request for the records requested in July and September 2022, most especially the abatement application filed with the Town. The Town’s November 15th response to this appeal indicates that the Town provided all records responsive to the request except the abatement application. The Town has withheld the abatement application, citing G. L. c. 59, § 60 as applicable to withhold the abatement application from Mr. Pinardi. The Town asserts, “[a]bsent a formal document from the property owner, we decline to provide a copy of the application.” 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

Karen Tonelli SPR22/2536 Page 3 November 18, 2022 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. G. L. c. 59, § 60 provides in pertinent part: …Applications for abatement or exemption under this chapter shall, except in proceedings before the county commissioners, the appellate tax board or a court of the commonwealth, be open only to the inspection of the assessors, the commissioner, the deputies, clerks and assistants of either the assessors or the commissioner and such other officials or designated private auditors of the commonwealth or of its political subdivisions as may have occasion to inspect such applications in the performance of their official, contractual or designated duties; provided, however, that nothing in this section shall prevent a person who submitted that information, or his designated representative, from inspecting or being provided a copy of the submission upon request… G. L. c. 59, § 60. Based on the Town’s response, asserting G. L. c. 59, § 60 to withhold the abatement application, as restricted by law, I find that the Town has demonstrated that the responsive abatement application is the type of record contemplated under G. L. c. 59, § 60. Accordingly, I find that the Town has met its burden to withhold the responsive abatement application from disclosure under Exemption (a). Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Pinardi 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). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Pinardi