Higgins, Patrick v. Swansea, Town of - Advisory & Finance Committee (SPR 20150298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams July 23, 2015 Supervisor ofR ecords SPRlS/298 Mr. Arthur D. Frank, Jr., Esq. 209 Bedford Street, Suite 402 Fall River, MA 02720 Dear Attorney Frank: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Higgins requested a copy of all of the Town Board of Selectmen's executive session minutes from 2014 and 2015. The Town denied Mr. Higgins request claiming that disclosure would defeat the lawful purposes for the executive sessions, and that four out of six of the sessions are protected by the attorney client privilege. Mr. Higgins appealed this response. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Your April 14, 2015 response failed to properly claim any applicable exemptions to withhold the records. Accordingly, I find that the Town has failed to meet its burden under the Public Records Law and has not overcome the presumption that the records are public. The Town is hereby ordered, within ten (10) days of this order, to provide Mr. Higgins with a written response, with specificity, how the claimed exemptions apply to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Arthur D. Frank, Jr., Esq. SPR15/298 Page Two July 23, 2015 exemption applies to the withheld or redacted portion of a record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Supervisor of Records cc: Mr. Patrick Higgins