Melanson, Alana v. Chelmsford, Town of - School Committee (SPR 20150357)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A. Williams Supervisor of Records

September 10, 2015 SPR15/357

Mr. Allen Thomas

Chair, Chelmsford School Committee 230 North Road

Chelmsford, MA 01824

Dear Mr. Thomas:

I have received the petition of Alana Melanson, of the Lowell Sun, appealing the nonresponse of the Chelmsford School Committee (Committee) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on April 6, 2015, Ms. Melanson requested a copy of “[a]ll agreements made between [Chelmsford Superintendent Dr. Frank Tiano] and the School Committee in regard to Tiano’s impending resignation to take effect on July 1 and all related supporting documentation in regard to settlement terms, monetary and otherwise.” Ms. Melanson also requested records of “[a]ll legal costs the School Department has incurred in association with these agreements.”

In a response dated April 16, 2015 Committee Chair Allen Thomas provided information regarding costs associated with the matter, but no records, With respect to the request for “all agreements” and “executive session minutes,” the Committee denied Ms. Melanson’s request, citing the personnel clause of the privacy exemption to the Public Records Law, as well as a clause of the Open Meeting Law. G. L. c. 4, § 7 (26) (c); G. L. c. 30A, § 22(f).

Settlement agreement

A 2013 Superior Court decision provides further guidance with respect to the public nature of separation, severance, transition or settlement agreements, as well as the types of personnel information included within such agreements that may be exempt from disclosure. See Globe Newspaper Company, Inc. v. Executive Office of Administration and Finance, et al, Suffolk Superior Court Civil Action No. 11-01184-A (June 14, 2013), 34-35. The parties in the above-captioned matter agreed to refrain from further appeal via a letter agreement dated December 17, 2013. It has come to my attention that a copy of the agreement has been provided. Accordingly, I will consider this portion of Ms. Melanson’s appeal closed.

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Allen Thomas SPR15/357 Page Two September 10, 2015

Executive session meeting minutes; other records responsive to request

My office has made several attempts to contact you regarding whether other responsive records exist, and the public status of those records. Despite our letter to you dated May 19, 2015 acknowledging the opening of this appeal, as well as follow-up telephone messages to you from a member of my staff, neither you nor the Committee has provided any additional information to support its exemption claims. Accordingly, I find the Committee has not met its burdens under the law to support a denial of access to public records.

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).

Accordingly, whereas the Committee has not overcome the presumption that the requested records are public, the Committee is hereby ordered, within ten (10) days of this order, to provide Ms. Melanson with the requested records. If the Committee maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Ms. Melanson a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive 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.

If there are any fees associated with this response a written, good faith estimate must be provided. 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 written good faith estimate). Once the fees are paid, you fnust provide the responsive records.

a n AY’ Williams

Supervisor of Records

cc: Ms. Alana Melanson