Loreti

"Trade-secrets" argument doesn't fly

Records about the Symmes development that town officials withheld from the public for nearly 17 months have been released to a former member of the Redevelopment Board who filed public-records requests with two state agencies to get them.

Chris Loreti has received the developer proposals for the Symmes site, including names of equity partners, submitted in 2011 by Upton + Partners and the Jefferson Apartment Group (JAG). He had pursued their release since July that year, when the Board of Selectmen voted to approve the developer and received a memo with name of one equity partner blacked out.

The twists and turns in the story portray a persistent former public official and resistant current officials who vie over information even while the project at Symmes was rising before the public's eyes.

"I am grateful to the Supervisor of Records for his efforts. And I am disappointed in the way town officials handled this request."

Loreti

"I am grateful to the Supervisor of Records for his efforts," Loreti wrote Dec. 6, two days after the state ordered documents released for a second time. "And I am disappointed in the way town officials handled this request."

Read the full text of the Dec. 4, 2012, order here >> (178 kb .PDF)

"Arlington public officials had no legal basis for withholding these public records to begin with, and their actions belie the claim that the town is committed to open government," Loreti wrote. "It shouldn't take a year for citizens to obtain copies of public records that are rightfully theirs...."

Town counsel responds

Asked why the town resisted releasing these records for so long, Town Counsel Juliana Rice on Dec. 20 referred YourArlington to a letter of last July "setting forth the basis on which the Redevelopment Board withheld the requested documents." One argument cites an exemption to the state's public-records law referring to trade secrets. See full text of her letter here >>

It was first published here last August and does not address the lengthy resistance involved in the case.

She declined to respond to a second question -- whether differences between Loreti and her were a factor. Last February, Loreti sued the town, claiming that his state and federal constitutional rights were violated when was not reappointed to the Redevelopment Board. Rice has been asked to clarify her response in the records case.

Also asked for comment were Carol Kowalski, the town planner, and Bruce Fitzsimmons, chairman of the Redevelopment Board. Kowalski, who is away until Jan. 2, and Fitzsimmons have not responded.

Documents name some names

Paper copies of the records Loreti sought were hand-delivered to his home Dec. 13. Upton documents show that the equity partners behind the financing for the Symmes project are John Moriarty & Associates of Winchester and Berkshire Residential of Boston.
Named in the documents from that company are William Reny, senior vice president, and Steve Wood, president.

JAG documents note the Starwood Capital Group, represented by Christopher D. Graham of Greenwich, Conn., as a potential equity partner. Starwood lists Graham as a managing director of acquisitions.

Knowing the names is one matter; knowing what they mean is another. Loreti said he does not know why officials did not want the public to know these names.

Key dates begin in July 2011

To follow the chronology of this story, return to the summer of 2011. After Arlington planners that May sought proposals to develop the long-stalled Symmes project, the Redevelopment Board by July was ready to recommend a developer.

On July 5 that year, the selectmen voted, 4-1, to recommend Upton + Partners of Dedham as the developer.

In supporting Upton, selectmen followed the recommendation of then-Town Manager Brian Sullivan, who said he saw the proposals from Upton and JAG as financially similar. Sullivan said he favored Upton because of its local projects and that its initial plan had 12 condos.

Sullivan did not mention the other two potential developers, Diversified Funding and Pulte Homes, which had advanced proposal earlier that year. Many Symmes' neighbors said they favored the proposal from the latter builder, because it is less dense.

Sullivan read from a lengthy statement, which YourArlington requested at the meeting's end, and it was published the next day. The statement had some words blacked out. See the full text of manager's report here >> (.PDF)

Two days later, the Redevelopment Board, which had the final say on the project, voted, 4-1, to support Upton.

"Names were news to me"

Less than two weeks later, on July 20, Loreti filed a complaint with selectmen seeking unredacted information about equity partners, those who help finance the project.

In seeking that information, Loreti wrote Dec. 24 that he did not know how many equity partners Upton + Partners had. "The number and names in the proposal were news to me," he wrote. "It appeared from the redacted Sullivan memo that there was just one. I don't know for sure which name was blacked out."

On Aug. 23, 2011, the selectmen responded to Loreti's initial complaint. Loreti said the response unsatisfactory, and that October he asked the state attorney general's office to investigate his complaint alleging the town manager and selectmen violated the Open Meeting Law.

His complaint said the selectmen did not respond within 10 days, as required under state law, they misrepresented how the memo was used at the July 5 meeting and they offered no remedial action.

In December 2011, Loreti requested copies of the developer proposals for the Symmes site. The board turned over the "public" proposal from JAG but withheld all other records, citing an exemption of the state Public Records Law that includes trade secrets. Loreti appealed to the state supervisor of records in the secretary of state's office.

Last April, work on the delayed Symmes project finally got underway. As two tall elevators rose and a broad retaining wall grew, the state issued a response last July to Loreti's complaint from the preceding December.

In a letter of July 12, Shawn A. Williams, supervisor of records, ordered Kowalski, the town planner, to review the records, redact where necessary, and provide them to Loreti within 10 days, or provide this office with a more comprehensive response to support the Redevelopment Board's exemption claim. See the story here >>

Issue of trade secrets addressed

To properly claim the exemption for trade secrets, Williams wrote that the custodian of records must meet all six criteria involved.

"Consequently," he wrote, "this exemption does not apply to information that companies provide to the government in connection with a contract bid or in compliance with a filing requirement."

On July 20, Rice, the town counsel, responded, continuing to use the argument that the undisclosed information are exempt under the state-secrets provision.

In a news story about this published in August, Rice provided her letter to the state -- the same one she sent YourArlington this month in response to a query about why the case has taken so long to resolve. The Aug. 6 news story is here >>

In September, the story took a fresh turn: The state ordered town to produce the documents in question so the state could inspect them in a confidential review to see whether they should be exempt from the Public Records Law.

"I welcome this review," Loreti wrote at the time, "as I am confident that it will show that the Town has been acting improperly in refusing to release these proposals."

In addition, Loreti wrote that JAG has "improperly cited an exemption to the Public Records Law to claim the town should not release its full proposal, and the town has adopted that misinterpretation of the law."

In November, the state completed its inspection of the documents. In December, it ruled that Arlington had turn over the documents.

Loreti says he originally requested the documents electronically. He expects to renew that request.

SOME LINKS IN THIS CASE

July 5, 2011: Redevelopment Board to choose Symmes developer after selectmen recommend Upton

July 16, 2012: State orders board to turn over Symmes project information

Aug. 6, 2012: Ex-board member makes case that Symmes records are public after town counsel says no

This story was published Wednesday, Dec. 26, 2012. The initial report saying "state secrets" was incorrect and has been corrected to "trade secrets."

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