Bibler, Eric v. Barnstable County Commissioners Office (SPR 20150411)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 18,2015 SPR15/411; 15/418 Mr. Michael Brillhart Barnstable County Administrator 3195 Main Street Barnstable, MA 02630 Dear Mr. Brillhart: I have received the petition of Eric Bibler appealing the response of the Barnstable County Administrator and the Barnstable County Board of Regional Commissioners (Commissioners) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on May 11, 2015, Mr. Bibler requested a copy of the May 6, 2015 meeting minutes, meeting exhibits and any other documents used at the May 6th meeting of the Commissioners concerning discussion of a legal opinion or other response solicited by the Barnstable County Administrator at the request of the Commissioners' Chairman, Sheila Lyons. It is my understanding that the Commissioners have continually failed to draft and make available to the public meeting minutes and meeting exhibits from their meetings. In fact, Mr. Bibler informed this office in his petition that the Commissioners had not posted any meeting minutes from January 2015 through May 2015. A review of the Commissioners website reveals that the minutes and exhibits are now posted for public access. See www.barnstablecounty.org Whereas this office has no authority to render determinations on the rules and procedures concerning the Open Meeting Law, I advise Mr. Bibler to seek advice from the Open Government Division of the Office ofthe Attorney General. 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Michael Brillhart SPR15/411; 15/418 Page Two September 18, 2015 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). After this office opened Mr. Bibler's appeals, the Commissioners posted minutes from January 2015 to May 2015, however Mr. Bibler informed this office on June 2, 2015 that he had not been provided with an itemized list of documents (exhibits) used at the May 6, 2015 meeting. Specifically, the Commissioners have failed to provide Mr. Bibler with a copy of the legal opinion of the special counsel obtained by Chairman Lyons through Mr. Brillhart. Nor have the Commissioners cited any exemptions in the Public Records Law to withhold the legal opinion. Accordingly, whereas the Commissioners have not overcome the presumption that the requested records are public, the Commissioners are hereby ordered, within ten (1 0) days ofthis order, to provide Mr. Bibler with the requested legal opinion. If the Commissioners maintain that any portion of the responsive record is exempt from disclosure it must, within ten (1 0) days provide to Mr. Bibler a written explanation, with specificity, how a particular exemption applies to the 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 ofthis 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, § lO(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 must provide the responsive records. cc: Mr. Eric Bibler Ms. Sheila Lyons