Paul Waple v. Swansea, Town of - Town Clerk (SPR 20251006)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/1006 Michael Minardi Principal Assessor Town of Swansea 81 Main Street Swansea, MA 02777 Dear Mr. Minardi: I have received the petition of Paul Waple appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 31, 2025, Mr. Waple requested, “[c]opies of ALL 3ABC forms filed by any church, house of worship or religious based organization located within the Town of Swansea for the previous 10 years.” The Town provided a response on April 10, 2025. Unsatisfied with the response, Mr. Waple petitioned this office and this appeal, SPR25/1006, 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. 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. 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 Minardi SPR25/1006 Page 2 April 22, 2025 The Town’s April 10th Response In its April 10, 2025 response, the Town informed Mr. Waple that it was withholding responsive records pursuant to G. L. c. 59, § 60. The Town stated that, “… since a 3ABC Form is the annual filing to qualify for an exemption, it is [the opinion of counsel] that the form would be exempt from being released as a public record.” Current Appeal In his April 11, 2025 petition to this office, Mr. Waple contended that the cited statute requires the responsive records to be made available for public inspection. 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. Records of Abatements G. L. c. 59, § 60 provides, in pertinent part: Applications for abatement or exemption under this chapter shall, except in proceedings before the county commissioners, the appellate tax board or a court

Michael Minardi SPR25/1006 Page 3 April 22, 2025 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. G. L. c. 59, § 60. Where the responsive records constitute applications for exemption from taxation, and where the above statute limits dissemination of said applications to a defined group of individuals or entities, I find that the Town may permissibly withhold the responsive records from disclosure under G. L. c. 59, § 60, as it operates through Exemption (a) of the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Waple 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 of Massachusetts. 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: Paul Waple