Donna Brewer v. Barnstable, Town of - Town Clerk (SPR 20251435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 3, 2025 SPR25/1435 Ann Quirk Town Clerk Town of Barnstable 367 Main Street Hyannis, MA 02601 Dear Ms. Quirk: I have received the petition of Donna Brewer, Esq. appealing the response of the Town of Barnstable (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 29, 2025, Attorney Brewer requested: [1] A copy of the Town of Barnstable Shellfish Aquaculture License Report submitted by the Cotuit Oyster Company for the calendar year 2024. [2] Records of all communications by and between any employee/agent of the Town of Barnstable (including but not limited to all staff of the Department of Marine and Environmental Affairs) and the Cotuit Oyster Company and any employee or any attorney or agent acting on behalf of the Cotuit Oyster Company - from January 1, 2024 to date. [3] Records of all communications by and between any elected official of the Town of Barnstable and the Cotuit Oyster Company and any employee thereof or any attorney or agent acting on the Cotuit Oyster Company’s behalf, from January 1, 2024, to date. [4] Records of all communications by and between any employee of the Town of Barnstable (including but not limited [to] all staff of the Department of Marine and Environmental Affairs) and any member of the Shellfish Advisory Committee of the Town of Barnstable regarding the Cotuit Oyster Company, and any employee thereof, or any attorney or agent acting on the Cotuit Oyster Company’s behalf from July 1, 2023 to date. [5] Records of all communications by and between any member of the Town of 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

Ann Quirk SPR25/1435 Page 2 June 3, 2025 Barnstable Shellfish Advisory Committee and the Cotuit Oyster Company, and any employee thereof, or any attorney or agent acting on the Cotuit Oyster Company’s behalf from July 1, 2023, to date. [6] Records of all documents confirming all amounts paid to the Town of Barnstable by the Cotuit Oyster Company from January 1, 2024, to date. [7] Records of all documents confirming all amounts paid by the Town of Barnstable to the Cotuit Oyster Company from January 1, 2024, to date. [8] A copy of all notes, drafts, and communications associated with the ‘Shellfish Aquaculture License Site renewal application and decision on issuance of a new license’ memo of [an identified individual], Director of Natural Resources, dated February 5, 2024. [9] All notes and communications of the Town of Barnstable (including but not limited to Shellfish Constable [an identified individual]) related in any way to the deployment of above-water or floating oyster gear in any waterway of the Town of Barnstable, from January 1, 2013, to date. [10] Records of all records (text and cell phone included) of communications from or to Barnstable Shellfish Constable Croteau or from or to [an identified individual] from January 1, 2023, to date with any of the following phone numbers: [a list of 7 identified phone numbers]. [11] Records of all communications by and between any employee of the Town of Barnstable (including but not limited all staff of the Department of Marine and Environmental Affairs) and the Massachusetts Department of Marine Fisheries related to the Cotuit Oyster Company and any employee thereof or any attorney or agent acting on the Cotuit Oyster Company’s behalf - from July 1, 2023 to date. [12] Records of all communications by and between any employee of the Town of Barnstable (including but not limited to all staff of the Marine and Environmental Affairs) and the Massachusetts Department of Marine Fisheries related to the use or deployment of above water or floating oyster gear on any waterway in the Town of Barnstable - from July 1, 2023 to date. [13] Records of all communications by and between any employee of the Town of Barnstable (including but not limited all employees of the Department of Marine and Environmental Affairs) and the Army Corp of Engineers related to the Cotuit Oyster Company and any employee thereof or any attorney or agent acting on the Cotuit Oyster Company’s behalf - from July 1, 2023 to date.

Ann Quirk SPR25/1435 Page 3 June 3, 2025 [14] Records of all communications by and between any employee of the Town of Barnstable (including but not limited [to] all employees of the Marine and Environmental Affairs) and the Army Corp of Engineers related to the use or deployment of above water or floating oyster gear on any waterway in the Town of Barnstable - from July 1, 2023 to date. [15] All photographs, diagrams, GIS images, and other depictions identifying existing and proposed changes to any Aquaculture Grant boundaries of the Cotuit Oyster Company from January 1, 2023, to date. [16] Records of all communications by and between any Town of Barnstable Shellfish Biologist or related staff and the Cotuit Oyster Company and any employee or any attorney or agent acting on behalf of the Cotuit Oyster from January 1, 2023, to date. [17] All reports, findings, analysis, and identification of natural shellfish populations in the immediate areas of the Cotuit Oyster Company’s grants (#2, #3, #4, #6, and #7) from January 1, 2010, to date. [18] All communications, photos, test results, and reports regarding the oil/fuel/diesel spill on the waterways at the location of the Cotuit Oyster Company dock (and Grant area #3) in the summer of 2023. [19] Copies of any other permit(s) issued to the Cotuit Oyster Company in connection with its operation of shellfish aquaculture grants in the waterways of the Town of Barnstable for the period January 1, 2023, to date. The Town provided a response on May 20, 2025. Unsatisfied with the Town’s response, Attorney Brewer petitioned this office and this appeal, SPR25/1435, was opened as a result. Subsequently, the Town provided a supplemental response on June 2, 2025. 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

Ann Quirk SPR25/1435 Page 4 June 3, 2025 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. Current Appeal In her appeal petition, Attorney Brewer states: [The Town’s response] does not deny that the records requested are public records, nor does it claim that there is any exemption or privilege justifying withholding the records. Instead, it relies on 950 CMR 32.08(2)(a)(1) as the basis for its refusal to produce... The Town cites to the pending litigation of The Neighbors of Cotuit Narrows v. Barnstable Town Council, C.A. No. 2472CV00132 (Barnstable Super. Ct.) as the basis for its refusal to produce responsive records. The Town elides over the fact that pending litigation may serve as a basis for you to deny an appeal but does not serve as a basis for the Town to refuse to produce… The pending litigation challenges the Town’s renewal of the aquaculture license to Cotuit Oyster Company in 2024. The Town has provided no explanation as to how the requested records are a subject of the dispute in litigation. Several of the categories of requested records are related to the company but cannot credibly be deemed to be a matter of dispute in litigation… These paragraphs request strictly factual data or reports. They are what they are; they simply cannot be disputed in the pending litigation. There is no basis for the Town to withhold licenses or permits already issued, reports already written, or data already compiled. Paragraph 12 requests communications are not focused on Cotuit Oyster Company. Paragraph 18 seeks communications regarding a fuel spill but there is no mention of this spill in the complaint… Paragraphs 2-5, 8 -11, 13-14, and 16 in general seek communications among state and local officials and representatives of the Cotuit Oyster Company. From the complaint in the pending litigation, we know that at least some of these records were produced to plaintiffs’ counsel in response to an appeal to your office. See Complaint, … 63-65 and exhibit 10, your office’s response in SPR24/0402. It is indefensible for the Town to produce documents in response to a Public Records request to litigants, after it is ordered to do so by your office, but to withhold those same records in response to a Public Records request by a non-litigant.

Ann Quirk SPR25/1435 Page 5 June 3, 2025 The Town’s May 20th Response In its May 20, 2025 response, the Town states: Your request requires the town to conduct a search of ‘records of all communications by and between any employee/agent of the Town of Barnstable (including but not limited to all staff of the Department of Marine and Environmental Affairs (MEA)) and the Cotuit Oyster Company (COC) and any employee or any attorney or agent acting on behalf of the Cotuit Oyster Company’ identified in #2 of your letter dated June April 29, 2025 with a total of 19 separate, but similar requests for records by and between the Shellfish Advisory Committee, elected officials, the Massachusetts Department of Marine Fisheries, and Army Corp of Engineers. The request also includes records of numerous documents, reports, payment information, etc. The request you have made is related to a civil complaint which is pending in Barnstable Superior Court, The Neighbors of Cotuit Narrows et al vs. Barnstable Town Council et al, Docket No. 2472CVOO132. As such, the requested records fall within a recognized basis for appeal denial under 950 CMR 32.08(2)(a)(l). The Town’s June 2, 2025 supplemental response states: As of June of 2024, Cotuit Oyster Company and the Town of Barnstable are co- defendants in litigation in Barnstable Superior Court. The complaint in this matter was filed by abutters to the Cotuit Oyster Company’s operations in order to appeal the Town’s issuance of an extension of their shellfish permit. Your requests seek documents which are directly related to the issues alleged and argued during the course of this case. All communications, licenses, reports, photographs, permits, test results, etc. are all materials that either have already or will come up in the future of this litigation during discovery and/or throughout arguments by the parties. As such, the Town is denying your request for these documents as they are all the subject of this litigation. Active 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.

Ann Quirk SPR25/1435 Page 6 June 3, 2025 In light of the ongoing litigation, The Neighbors of Cotuit Narrows et al vs. Barnstable Town Council et al, (2472CVOO132), 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: Donna Brewer, Esq. Derek Lawson