Nitschelm, Allen v. Acton-Boxborough Regional School District (SPR 20150168)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords May 21,2015 SPRlS/168 Mr. D.M. Moschos, Esq. Mirick, O'Connell, DeMallie & Lougee, LLP 10 0 Front Street Worcester, MA 01608 Dear Attorney Moschos: I have received the petition of Allen Nitschelm, on behalf of Acton Forum, appealing the response of Acton-Boxborough Regional School District (School) to his requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Nitschelm requested a copy of the minutes from an October 9, 2014 executive session meeting held by the School Committee. In addition, Mr. Nitschelm requested a copy of any correspondence to or from a specifically named individual from September 1, 2014 to the present, including any emails and documents related to the individual's separation from the School. In a response dated February 24, 2015, the School denied Mr. Nitschelm's request for the executive session minutes, claiming they are exempt from disclosure pursuant to Exemptions (a) and (c) of the Public Records Law as well as the attorney-client privilege. G. L. c. 4, § 7(26)(a), (c). In a response dated February 27, 2015, the School provided a fee estimate for the provision of the correspondence records, but also indicated that some responsive records may be exempt. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(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 town 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(c); 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 ( c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. D.M. Moschos, Esq. SPR15/168 Page Two May 21,2015 Request for executive session minutes Under the Open Meeting Law the minutes of an executive session may be withheld from disclosure to the public in their entirety, as long as publication may defeat the lawful purposes of the executive session, but no longer. G.L. c. 30A, § 22(±). The minutes must be disclosed once the purpose for which an executive session was held has been served, unless one or more of the exemptions under the Public Records Law or the attorney-client privilege applies to withhold all or a portion of the minutes. I d. 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 as to the status of executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek a determination on this issue. The School's response dated February 24,2015 states that the minutes ofthe October 9, 2014 executive session are exempt from disclosure under Exemptions "(a) and (c), specifically, [G.L. c.] 149, Section 52C and [G.L. c] 214, Section lB, because matters discussed at executive sessions pertaining to personnel issues are permanently exempted and protected from disclosure . . . ." The School also claims the minutes are exempt pursuant to the attorney-client privilege. This response does not claim that disclosure of these records would defeat the lawful purpose of the executive session so an analysis of the School's Public Records Law exemptions claims is appropriate. The School's response did not contain the specificity required in a denial of access to public records. Instead, the School's response merely cites Exemptions (a), (c), two other statutes, and the attorney-client privilege without any further explanation as to the exemptions' applicability to the requested records. The School is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the School failed to satisfy its burden in responding to the request for the executive session minutes. The School is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Request for correspondence The School's response dated February 27, 2015 states that it appears that Mr. Nitschelm's request for "any correspondence to or from" the specified individual is related solely to his desire to obtain documents, including emails, related to the individual's separation from employment. It should be noted that access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances or desires of the requester. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). However, in this particular case, Mr. Nitschelm indicated in his appeal to our office that he is only interested in documents that relate to the individual's separation from employment or any discussion of future payments. The School's response also claims that documents, including emails, related to personnel matters are permanently exempt from disclosure pursuant to Exemptions (a) and (c). Further, the School claims that some responsive records may include information related to student records

Mr. D.M. Moschos, Esq. SPR15/168 Page Three May 21, 2015 that would be exempt under Exemption (a) and G.L. c. 71, §§ 34D, 34E. The School also claims that G.L. c. 149, §52C, G.L. c 214, § 1B, and the attorney-client privilege may apply to exempt portions of the responsive records from disclosure. The response indicates that ifMr. Nitschelm wishes to obtain the requested documents that are not otherwise exempt from disclosure, he must pay $245.00 to cover the costs for search, segregation, and copying of those documents. Finally, the response states that Mr. Nitschelm may appeal the School District's denial of your request for a copy of personnel and student record documents to the Supervisor of Public Records ...." This response appears to be a denial, in part, of Mr. Nitschelm's request. The School may not prematurely refuse to provide "any documentation containing personnel-related information" or "any documentation containing student record information" without ascertaining whether the documents exist and specifically explaining to Mr. Nitschelm how the entirety of the responsive records are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). As a result, I find that the School failed to satisfy its burden in responding to Mr. Nitschelm's request for correspondence. A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide a written good faith estimate). However, I find that the School did not meet its burden in proving that the fee estimate is reasonable in accordance with the Public Records Law and Access Guidelines because it is based, in part, on the improper withholding of potentially responsive records. Accordingly, the School is hereby ordered, within ten (10) days ofthis order, to provide Mr. Nitschelm with the minutes of the October 9, 2014 executive session. Ifthe School maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide to Mr. Nitschelm a written explanation, with specificity, how a particular exemption applies to each record. If so, the School must provide Mr. Nitschelm with a custodial index. See 950 C.M.R. 32.06(7). The School must also provide a revised fee estimate for the provision of the requested correspondence that is in accordance with this Determination, the Public Records Law, and the Access Regulations. cc: Mr. Allen Nitschelm