Thaddeus Heuer v. Ipswich, Town of - Human Resources (SPR 20230498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2023 SPR23/0498 Amy Akell Records Access Officer Town of Ipswich 25 Green Street Ipswich, MA 01938 Dear Ms. Akell: I have received the petition of Attorney Thaddeus Heuer appealing the response of the Town of Ipswich (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 7, 2022, Attorney Heuer requested four categories of records concerning communications from eighteen Town employees and officials, including specified search terms, during a specified time period. From October 24, 2022 through December 2022, the Town began providing records on a rolling basis. Following further correspondence, the Town again responded on February 17, 2023. Unsatisfied with the Town’s response, Attorney Heuer 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 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

Amy Akell SPR23/0498 Page 2 March 28, 2023 Pending Litigation While this appeal was pending, the Town provided a supplemental response on March 23, 2023. In its March 23rd response, the Town argues that “the records in question are the subject of active litigation.” Specifically, the Town explains that “Attorney Heuer represents the plaintiffs in Whittier, et al. v. Planning Board of the Town of Ipswich, et al., No. 22-MISC- 000554 (HPS) (Oct. 24, 2022), currently pending in Land Court.” The Town goes on to explain that the plaintiffs in that case “claim that the Ipswich Planning Board’s grant of a special permit to a project ... in Ipswich was unlawful.” The Town further argues that “[a] cursory review of Attorney Heuer’s search terms demonstrates that he is looking for records relating to the special permit application,” and cites numerous specific search terms from the request. In his appeal petition, Attorney Heuer contends that “the public records being requested here are not the ‘subjects of disputes’ in the litigation,” and reiterates his argument in a letter to this office and the Town on March 23, 2023. 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 reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Attorney Heuer’s request, is active and ongoing in the Massachusetts Land Court. See Whittier, et al. v. Planning Board of the Town of Ipswich, et al., (Land Court Docket No. 22-MISC-000554 (Oct. 24, 2022). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Please note 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: Thaddeus Heuer, Esq. Christina S. Marshall, Esq. George Hall, Esq.