Carl Luck v. Lunenburg, Town of (SPR 20232608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 10, 2023 SPR23/2608 Heather R. Lemieux Town Manager Town of Lunenburg 17 Main Street P. O. Box 135 Lunenburg, MA 01462 Dear Ms. Lemieux: I have received the petition of Carl Luck appealing the response of the Town of Lunenburg (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 16, 2023, Mr. Luck requested the following records pertaining to the Town Board of Assessors (BOA) and Municipal Finance Services, LLC (MFS): [1.] …all data files provided to the BOA that resulted from the MFS contract from Lunenburg to inspect all lake front properties who requested abatements as a result of the 2023 tax assessment. Prior Appeals The requested records were the subject of prior appeals. See SPR23/1897 Determination of the Supervisor of Records (August 23, 2023); SPR23/1999 Determination of the Supervisor of Records (September 7, 2023) and SPR23/2187 Determination of the Supervisor of Records (September 27, 2023). In my September 27th determination, I ordered the Town to provide a further response to Mr. Luck. Subsequently, the Town responded on October 5, 2023, providing a responsive contract, and citing Exemption (a) for withholding other records and indicating that those records were used in executive session. Unsatisfied with the Town’s response, Mr. Luck petitioned this office and this appeal 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 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

Heather R. Lemieux SPR23/2608 Page 2 November 10, 2023 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. The Town’s October 5th Response In its October 5, 2023 response, the Town cites Exemption (a) of the Public Records Law and G. L. c. 59, § 60 for withholding responsive records and states that the records “were used by the Board of Assessors in Executive Session.” See G. L. c. 4, § 7(26)(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. In its response, the Town cites G. L. c. 59, § 60, which provides in pertinent part as follows:

Heather R. Lemieux SPR23/2608 Page 3 November 10, 2023 The records which boards of assessors are required to keep pursuant to this section shall be kept, in the order in which such abatements of taxes are granted, in a book or set of books provided for the purpose and in such form as the commissioner may prescribe. Such book or books, or copies thereof, shall be open to public inspection. Every board of assessors shall at the request of any person furnish one or more copies of any record required by this section to be kept, upon the payment in advance of a fee approximating the cost of such copy or copies. Applications for abatement or exemption under this chapter [c. 59] 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. For purposes of this section, a designated private auditor shall be an individual, corporation or other legal entity proficient in auditing selected by the director of accounts or any city or town to perform an audit which includes the assessing department of a city or town under any legal authority, including an audit under sections forty or forty- two of chapter forty-four, or an investigation under section forty-six A of chapter forty-four. Under the statute stated above, the Town argues the following: These records are statutorily exempt as defined by M.G.L. c. 4 §7 (26)(a) as these records are directly related to abatement applications, which are exempt per M.G.L. c.59 §60. Since these records are statutorily exempt from disclosure, the Town is withholding these records. Open Meeting Law Additionally, in its October 5th response, the Town states that “the records ... were used by the Board of Assessors in Executive Session when reviewing abatement applications.” In an August 31, 2023 email to this Office, the Town further explains the following: Municipal Finance Services (MFS) did receive copies of all the abatement applications (over 400) from the Assessor’s office and did inspections on all the properties that filed abatement applications. Their results of their inspections were given to the Board of Assessors for their review of all the abatement requests (which were all done in executive session). Where the Town indicates that the responsive records were used in executive session, the

Heather R. Lemieux SPR23/2608 Page 4 November 10, 2023 Town’s response raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. Consequently, I encourage Mr. Luck to contact the AGO for a determination on the status of the records used in executive session. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Luck 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: Carl Luck