Kenneth A. Gullicksen, Esq. v. Nantucket, Town of (SPR 20231980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2023 SPR23/1980 Maureen Colman Public Records Compliance Officer Town of Nantucket 16 Broad Street Nantucket, MA 02554 Dear Ms. Colman: I have received the petition of Kenneth A. Gullicksen, Esq., of Reade, Gullickson, Hanley & Gifford, LLP, appealing the response of the Town of Nantucket (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 26, 2023, Attorney Gullicksen, through his Legal Assistant Carrie Phillip, requested: [a]ny document concerning or arising out of: the [T]own’s interest in acquiring 31 Easy Street (whether by purchase or eminent domain taking); the [T]own’s proposed use(s) of 31 Easy Street; and any potential division, sale or conveyance of 31 East Street. Document to be construed in its broadest sense and to include plans. On May 26, 2023, the Town’s JustFOIA system generated a confirmation of the request filed by Attorney Gullicksen with a request reference number and a security key to enable communications from the requestor to staff in the Town regarding the request. Communications between the Town and the Requestor In a June 8, 2023 email to Attorney Gullicksen, Public Records Compliance Officer, Maureen Colman, stated, “I requested IT collect emails which yielded over 5,000 and 8 GB worth of data, lots of PDF attachments. This information was largely discussed in Select Board executive session and would not be released under privileged information. Please refine your request.” On June 12, 2023, the firm’s Legal Assistant, Carrie Phillip responded, “[t]hank you for getting back to me. I cannot refine the request. I understand that it will be a lot of materials, but please proceed. If there is any cost involved, that is fine, just let me know.” 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

Maureen Coleman SPR23/1980 Page 2 September 6, 2023 In a June 12th email, Ms. Coleman asked Ms. Phillip, “[c]ould you provide a date range for your email search please?” In a June 29th email to Ms. Coleman, Ms. Phillip stated, “[s]orry for the delay. Can we start with 1/1/2018 to date?” On July 20th, Ms. Rosita Krasteva in the Town’s Planning & Land Use Services provided certain records, stating, “[t]hank you for your patience, this is all we have on file.” On August 3, 2023, Ms. Phillip inquired from Ms. Coleman about the request, asserting, “[c]an you please provide an update on this search? I have not received the information requested. To date, I have only received a couple of [Historic District Commission (HDC)] and building documents from Rosita Krasteva.” As a result of not receiving any further records, on August 23, 2023, Attorney Gullicksen petitioned the Supervisor of Records, and this appeal was opened. 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) (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). The Town’s August 29, 2023 Response and Production of Records After this appeal was opened, on August 29, 2023, Ms. Coleman provided Attorney Gullicksen with emails, including documents. However, on August 30th, Attorney Gullicksen emailed Ms. Coleman, asserting: [u]sing a different computer we were eventually able to access documents using the link you provided yesterday. What I could view consisted entirely of 66 emails. Except for three from 2022 involving HDC sign applications (which are

Maureen Coleman SPR23/1980 Page 3 September 6, 2023 not responsive to the request which was for documents concerning the [T]own’s interest in acquiring the property, not permitting by the owner) all were from 2023. Many of the emails reference attachments, which were not included. Since the [T]own submitted [T]own [M]eeting articles involving the taking and disposition of the property in 2022 and 2023 there must be documents prior to 2023, not all of which will be emails. Please let me know if additional documents were included in the link and we will make further attempts to access them, although it is likely that they will have to be provided in another manner. If not, please let me know when I can expect to receive all documents that are responsive to the request. On September 5, 2023, Ms. Coleman contacted Attorney Gullicksen again, via email, regarding the production of records, stating, “I apologize for the cumbersome process accessing the documents through the link. However, as you stated you were finally able to open the link, attachments are included in the emails. Below is a screenshot of a responsive email with the attachment, ‘Final Press Release – 31 Easy St 4.26.2023.’ Click on the highlighted text to open the document, some emails have multiple attachments. . . . Please let me know if you have success opening the attachments. If not, I will send multiple emails with manageable sized information.” Conclusion Accordingly, where the Town has provided the responsive records to Attorney Gullicksen, I will consider this administrative appeal closed. I encourage the parties to continue to communicate to resolve any outstanding requested records. If issues remain, Attorney Gullicksen may appeal the substantive nature of the Town’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kenneth A. Gullicksen, Esq.