Richard Storrow v. New Marlborough, Town of - Town Clerk (SPR 20243055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 19, 2024 SPR24/3055 Katherine Chretien Town Clerk Town of New Marlborough 807 Mill River Southfield Road Mill River, MA 01244 Dear Ms. Chretien: I have received the petition of Professor Richard Storrow appealing the response of the Town of New Marlborough (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2024, Professor Storrow requested the following: [1] Real property tax record cards for fiscal years 2020, 2021, 2022 and 2023 for the following properties: Street Address Record Card Key Property ID . . . Aberdeen Ln 2451 402_25.1_0 . . . Aberdeen Ln 529 402_26_0 . . . Aberdeen Ln 592 402_26.1_0 . . . Aberdeen Ln 593 402_26.2_0 . . . Aberdeen Ln 523 402_20_0 . . . Aberdeen Ln 524 402_21_0 . . . Aberdeen Ln 518 402_15_0 . . . Aberdeen Ln 2545 402_19_0 . . . Aberdeen Ln 517 402_14_0 . . . Aberdeen Ln 526 402_23_0 . . . Aberdeen Ln 516 402_13_0 . . . Aberdeen Ln 591 402_20.1_0 [2] Personal property tax record cards for fiscal 2024 for the above-listed properties[;] [3] Real property tax record cards for fiscal years 2020 and 2021 for the following 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

Katherine Chretien SPR24/3055 Page 2 November 19, 2024 property: Street Address Record Card Key Property ID . . . Knight Rd 515 402_12_0 On November 6, 2024, the Town provided a response, which included certain records. Unsatisfied with the Town’s response, Professor Storrow petitioned this office and this appeal, SPR24/3055, was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response on November 18, 2024. 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. 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. Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Professor Storrow’s interest in obtaining the requested information shall have no bearing on the public nature of the record. Current appeal In his appeal petition, Professor Storrow states that he is “appealing the denial of the request numbered [Item 2] in the . . . request. [Item 2] relates to personal property tax record cards.” Professor Storrow further opines the following:

Katherine Chretien SPR24/3055 Page 3 November 19, 2024 The RAO, on November 6, 2024, denied [Item 2 of the] request . . . as “not public knowledge and considered confidential.” The RAO provided no citation to the exemption invoked in response to [Item 2], and did not inform me of my right to appeal. M.G.L. ch. 66, § 10(b)(iv), (ix). As for the substance of the RAO’s refusal, I am unaware of any such “not public knowledge/confidential” exemption, nor do I believe the RAO’s refusal is a fair characterization of “personal privacy” in M.G.L. ch. 4, § 7(26)(c). The Town of New Marlborough makes its real estate tax record cards available for all to see on- line, as are the town’s real estate and personal property tax bills. The Town’s Responses In its November 6, 2024 response, the Town provided responsive records for Items 1 and 3 of the request and stated, “[e]nclosed please find the requested copies of the following property cards.” The Town also provided copies of documents titled “Fiscal Year 2023 Assessor’s Contracts,” “Fiscal Year 2024 Assessor’s Contracts,” and “Town of New Marlborough Annual Report Fiscal Year 2017.” The Town’s response further indicated that the request concerned a matter before the Massachusetts Appellate Tax Board. See Richard Storrow and Carlos Ball v. Board of Assessors of the Town of New Marlborough, Massachusetts Docket No. F-352672. In its supplemental response to Professor Storrow and this office on November 18, 2024, a member of Town Counsel confirmed that the records at issue in this appeal relate to a matter currently pending before the Appellate Tax Board. Town Counsel further stated the following: Please be advised that Attorney Storrow has requested discovery in the Appellate Tax Board proceedings. Accordingly, the Town respectfully requests that the Supervisor deny the appeal based on 950 CMR 32.08(2)(b), as there is active litigation between the parties and indeed, Attorney Storrow has moved to compel discovery in his appeal of the town’s assessment. Additionally, the Town has responded to the appellant’s request for items that are available for inspection by the public. . . . In terms of data relating to personal property taxes, said information is not available absent a court order. See G.L. c. 59, § 32. Please note, in correspondence to the Town and this office on November 18, 2024, Professor Storrow objected to the Town’s supplemental response described above. Pending administrative matter 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:

Katherine Chretien SPR24/3055 Page 4 November 19, 2024 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. Conclusion In light of the pending matter, it is my determination that the records at issue in this appeal is the subject of a dispute in an active administrative proceeding. Accordingly, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted 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: Professor Richard Storrow