Foley, Kathryn v. Adams, Town of - Town Clerk (SPR 20261135)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 8, 2026 SPR26/1135 Haley Meczywor Records Access Officer Town of Adams 9 Park Street Adams, MA 01220 Dear Ms. Meczywor: I have received the petition of Kathryn Foley appealing the response of the Town of Adams (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2026, Ms. Foley requested, “. . . all records between the Town of Adams employees and legal counsel regarding me, my farm (Aisling Mountain Farm) and my property located at . . . West Rd? This includes, but is not limited to invoices and payments for legal services pertaining thereto.” Previous Appeal This request was the subject of a previous appeal. See SPR26/0823 Determination of the Supervisor of Records (March 19, 2026). In my March 19th determination, I found that the Town must provide additional information regarding its claims of attorney-client privilege and must clarify whether additional responsive records exist. Subsequently, the Town responded on March 30, 2026. Unsatisfied with the Town’s response, Ms. Foley petitioned this office, and this appeal, SPR26/1135, was opened as a result. Subsequent to the opening of this appeal, in multiple emails to this office, the Town provided further responses and Ms. Foley reiterated her objections to the Town’s responses. 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

Haley Meczywor SPR26/1135 Page 2 April 8, 2026 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 Responses In its March 30, 2026 response, an attorney for the Town states the following: [T]he records in question are now the subjects of disputes in active litigation. Namely, Ms. Foley on March 16, 2026 served notice to the Town of a lawsuit, Foley v. Board of Health, C.A. 2576CV00213, in Berkshire Superior Court (see attached service package to the Town). As such, pursuant to 950 CMR 32.08(2)(b)(1) (“the Supervisor may deny an appeal [when]…the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation”), the Town respectfully requests that this appeal be dismissed. In its April 2, 2026 response, the Town further argues the following: 1. The records request covers “all records of contact between the Town of Adams employees and legal counsel regarding me, my farm (Aisling Mountain Farm) and my property located at 185 West Rd[.] This includes, but is not limited to invoices and payments for legal services pertaining thereto.” Legal counsel was involved in – and, in fact, present at – the Board of Health hearing in question in the litigation. 2. G.L. c.30A, §14 does not apply to cities and towns. The state website provides that, “Since municipalities, local bodies, and commissions aren’t ‘agencies’ under G.L.c. 30A, the 30A appeal process doesn’t apply.” That said, even if G.L. c.30A did apply, there are instances when judges may look beyond the administrative record. Id. 3. Ms. Foley’s G.L. c.30A claim is only Count I of her Amended Complaint. ... Count II is a separate claim relative to the Massachusetts Civil Rights Act, namely, that the Town of Adams interfered with Ms. Foley’s civil rights. See pp.7–8 of the Amended Complaint. While the Town vigorously denies that any violation of the Massachusetts Civil Rights Act has occurred, records of contact between the Town and legal counsel regarding Ms. Foley would implicate this claim.

Haley Meczywor SPR26/1135 Page 3 April 8, 2026 4. There were no “normal channels” that were “bypassed.” 950 CMR 32.08(2)(b)(1) allows the Supervisor to “deny an appeal [when]…the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation”). The Town is asking that the instant appeal be denied and has included Ms. Foley on the communications making that request. Current Appeal In an email to this office on April 2, 2026, Ms. Foley argues, among other things, the following: The fact that counsel was “involved in” or “present at” the Board of Health hearing does not establish that the requested records are the “subject of” the pending litigation. For example, legal invoices relating to general representation, referenced by Attorney D’Ortenzio, have no bearing on the Court’s Chapter 30A review. The scope and jurisdiction of a Chapter 30A review are matters for the Court to determine. The Public Records Law serves as a separate transparency mechanism, not an alternative discovery tool. These mechanisms may proceed in parallel. Under Wakefield Teachers Ass’n v. School Committee of Wakefield, the Public Records Law functions independently of discovery, and potential relevance to litigation does not make requested records the “subject of” that litigation. 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 docket of the trial court and verified that the requested records are the subject of active and ongoing litigation in Berkshire County Superior Court. See Kathryn Foley v. Town of Adams, Berkshire Superior Court Docket No. 2576-CV-00213 (March 30, 2026). In light of the pending litigation, 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).

Haley Meczywor SPR26/1135 Page 4 April 8, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Kathryn Foley