Shibley, Craig v. Barre , Town of - Board of Selectmen (SPR 20140055)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords February 11, 2014 SPR14/055 Mr. Craig P. Shibley 2 Lost Oak Road West Boylston, MA 01583 Dear Mr. Shibley: I have received your petition appealing the response of the Town of Barre (Town) to your public records request. Specifically, you requested copies of several management letters and minutes from several executive sessions ofthe Town's Board of Selectmen (BOS). In response the Town denied a portion of your request, claiming that other records do not exist. G. L. c. 4, § 7 (26) (a), (f). Management Letters You requested copies of management letters submitted by Melanson Heath & Co. from 2005, 2007, 2008 and 2009. This office made a determination regarding the 2007, 2008 and 2009 management letters. See SPR 13/030 Determination of the Supervisor ofRecords (May 2, 2013). After another careful and thorough review of this matter, I respectfully decline to reverse my findings. On November 7, 2013 Town Administrator Heather Lemieux informed you that the 2005 management letters would also be withheld pursuant to Exemption (f), of the public records law. Exemption (f), also known as the investigatory exemption, pennits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such · disclosure would not be in the public interest G. L. c. 4, §7 (26)(f) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/p re

Mr. Craig P. Shipley SPR14/055 Page Two Febmary 11, 2014 This exemption allows investigative officials to withhold materials that could compromise investigative efforts if disclosed. There is no blanket exemption, however, for records created or maintained by investigative officials. District Attorney for the Norfolk District v. Flatley, 419 Mass. 507, 512 (1995); WBZ-TV4 v. District Attorney for the Suffolk District, 408 Mass. 595, 603 (1990). Therefore, a custodian generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. The exemption is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). In her response Ms. Lemieux informed you that the letters are subject to an ongoing investigation by the Office of the Worcester County District Attorney. Whereas the investigation into the incident remains ongoing, I find that the Town acted appropriately in withholding the requested records. Accordingly, I will consider this portion of this appeal closed. Executive Session Minutes In the Town's November 7, 2013 response, Ms. Lemieux informed you that the BOS did not hold a meeting on March 28, 2012, therefore there are no records responsive to this portion of your request. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26); see also 950 C.M.R. 32.03. Whereas, there are no records responsive to this particular request, this portion of the appeal is now closed. In denying your request for the remaining executive session minutes Ms. Lemieux inforn1ed you that the lawful purpose for holding the meetings in executive session has not ceased. The executive session minutes are being withheld pursuant to Exemption (a) of the Public Records Law. 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 Attorney General v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department ofEnvironmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985).

Mr. Craig P. Shipley SPR14/055 Page Three February 11, 2014 The applicable statute that permits the Town to withhold executive session minutes pursuant to Exemption (a) is the Open Meeting Law which provides: The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety under subclause (a) of clause Twenty-sixth of section 7 of chapter 4, as long as publication may defeat the lawful purposes of the executive session, but no longer; provided, however, that the executive session was held in compliance with section 21. G. L. c. 30A, §22(f) It is the Town's position that the reason for holding the meetings in executive session has not ceased. Whereas an interpretation of the Open Meeting Law falls within the authority of the Division of Open Government in the Office ofthe Attorney General (AGO), I decline to provide a detern1ination on the status of executive session minutes, as the lawful purpose for entering into executive session has not yet concluded. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. This administrative appeal is now closed. Shawn A. Williams Supervisor of Records cc: Ms. Heather Lemieux