Joseph Pecevich v. Marshfield, Town of - (SPR 20242144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2144 Michael A. Maresco Town Administrator Town of Marshfield 870 Moraine Street Marshfield, MA 02050 Dear Mr. Maresco: I have received the petition of Joseph Pecevich appealing the response of the Town of Marshfield (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2024, Mr. Pecevich requested the following: [1.] the actual printed Motion which was read by Selectboard Chair Fidler at the May 20, 2024 Selectboard meeting during the Pole Hearing for Wilson Road as brought forward by Verizon and Eversource. The Motion made by Fidler was to Approve the pole installation sought by the petition from Verizon and Eversource. And, [2.] copies of all correspondence to and from the Selectboard, the Town Administrator, Town Counsel and other parties relating to the pole Hearing and installation including a copy what is referred to as the “packet” supplied to the Selectboard from the Town Counsel for the May 20, 2024 meeting. The Town responded on July 5, 2024. Unsatisfied with the Town’s response, Mr. Pecevich petitioned this office, and this appeal, SPR24/2144, 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). 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

Michael A. Maresco SPR24/2144 Page 2 August 12, 2024 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. 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 July 5th Response In its July 5, 2024 response, the Town provides numerous responsive records, indicates that it is withholding others pursuant to the attorney-client privilege, and states that the records are the subject of pending litigation. Specifically, the Town explains the following: [Mr. Pecevich has] initiated a lawsuit against the Town of Marshfield and others in a matter entitled, Joseph Pecevich v. Marshfield Select Board, et al, Plymouth Superior Court, Docket No. 2383CV00475 [sic] that concerns the same subject matter as your records request. In this lawsuit, the Town of Marshfield has already provided and field [sic] with the Court a preliminary written record of proceedings, in connection with its opposition to a Motion for a Preliminary Injunction. You were also provided with that information via email on July 2, 2024 according to Town Counsel. The actual meeting minutes including the actual motion made and votes as well as a video of the proceedings. The Town is required to file the actual administrative record within 90 days according to Superior Court Standing Order 1-96 and this will include any public documents forming a part of the decision. Since there is pending litigation and you will have the right to challenge the contents of the record already provided and the final record to be filed. Accordingly, the Town declines to provide anything other than what has been produced and what will be contained in the record. Current Appeal As part of his original request, Mr. Pecevich also states the following: [T]he Response references materials that will be given to me as part of the submittal to the Court. I do not believe I must wait for the town to submit the requested documents to the Court before i get them. [sic]

Michael A. Maresco SPR24/2144 Page 3 August 12, 2024 In his appeal petition, Mr. Pecevich states that he “would like ... help in obtaining these documents being withheld.” 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. This office has reviewed the Superior Court’s docket and verified that civil litigation, relating to the records that are the subject of Mr. Pecevich’s request, was transferred from Plymouth Superior Court to the United States District Court for the District of Massachusetts on July 18, 2024, where the litigation remains active and ongoing. See Joseph Pecevich v. Lynne E. Fidler as member of the Marshfield Selectboard, et al. (United States District Court for the District of Massachusetts Docket No. 1:24-CV-11778-RGS (Aug. 8, 2024)); Joseph Pecevich v. Lynne E. Fidler as member of the Marshfield Selectboard, et al. (Plymouth Superior Court Docket No. 2483-CV-00475 (July 18, 2024)). 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: Joseph Pecevich