Moser, Douglas v. Methuen, City of (SPR 20140096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 14, 2014 SPR14/096 Mr. Douglas Moser The Eagle-Tribune 100 Turnpike Street North Andover, MA 01845 Dear Mr. Moser: I have received your petition regarding the response of the City of Methuen (City) to your January 6, 2013 request for a public record. G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested a copy of a December 27, 2013 letter from a specifically named individual to the City. "Public records" is broadly defined to include all documentary materials or data, regardless of physical forn1 or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The statutory exemptions are strictly and narrowly construed. Globe Newspaper Co. v. Dist. Att'y for the Middle Dist., 439 Mass. 374, 380 (2003); Att'y Gen. v. Ass't Comm'r of the Real Prop. Dep't ofBoston, 380 Mass. 623, 625 (1980). Exemption (a) The City informed you, and Legal Counsel Mark Reich of Kopelman and Paige, P.C. informed this office that the responsive letter is exempt pursuant to one of the Open Meeting Law exceptions as it operates through Exemption (a) of the Public Records Law. Exemption (a) allows the custodian to withhold records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Douglas Moser SPR14/096 Page Two March 14, 2014 A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language of the exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottoway Newspaper Co. v. Appeals Court, 372 Mass. 539, 545-46 (1977). My authority as Supervisor of Records does not permit me to order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department ofEnvtl. Quality ~' 19 Mass. App. Ct. 287,294 n.4 (1985). The Open Meeting Law is one statute that allows a custodian to withhold records pursuant to Exemption (a). Attorney Reich informed this office that the City Council discussed this matter in executive session, not open session, and that the lawful purpose for entering into executive session has not yet concluded. On March 7, 2014, Attorney Reich informed, an attorney on my staff that the matter is on-going and will likely require additional executive sessions. The City went into executive session regarding the litigation strategy exception. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination on the status of records regarding executive sessions, as the lawful purpose for entering executive session has not yet concluded. It is recommended that you contact the AGO if you seek a determination on this issue. Accordingly, I find that the City has properly withheld the record pursuant to Exemption (a) of the Public Records Law. As such, I decline to opine upon the City's Exemption (c) claim. Your administrative appeal is closed. Shawn A. Williams Supervisor of Records cc: Mark Reich, Esq. Christine Touma-Conway