Allen Nitschelm v. Acton-Boxborough Regional School District (SPR 20160297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 24,2016 SPR16/297 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, on February 16,2015 and October 18,2015 Mr. Nitschelm requested copies ofthe minutes from executive session meetings held by the School Committee. It should be noted that this request, in part, was part of a previous appeal. See SPR15/473 Determination of the Supervisor of Records (December 4, 2015). 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). Open Meeting Law-October 9, 2014 executive session minutes It is my understanding that Mr. Nitschelm's request for the minutes of an executive session held on October 9, 2014 was reviewed by the Office of the Attorney General (AGO). See OML 2015-170 (November 13, 2015). In light of the AGO's determination, the School provided redacted copies ofthe minutes of the October 9, 2014 executive session on December 21, 2015. Mr. Nitschelm appealed these redactions. 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. SPR16/297 Page2 May 24,2016 Minutes to additional executive sessions In a response dated December 7, 2015, the School also provided redacted copies of minutes from five (5) executive sessions that took place on the following dates: December 11, 2014, January 22,2015, March 19,2015, June 25,2015, and July 22, 2015. The School explained "that redactions are made for information that involves private personnel issues or attorney client privilege discussion." Mr. Nitschelm appealed these redactions. The School's response did not contain the specificity required in a denial of access to public records. Instead, the response cites information regarding "private personnel issues or attorney client privilege discussion" without any further explanation as to an exemption's applicability to the requested records. You informed an attorney on my staffthat the School would provide a supplemental response to Mr. Nitschelm that addresses the issues described above, in particular the basis for withholding portions of the responsive records as well as a history ofthe responses provided thus far. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School, within ten (10) days of this order, provides Mr. Nitschelm with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the 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. 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, § 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. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law.

Mr. D. M. Moschos, Esq. SPR16/297 Page 3 May 24,2016 In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. ease contact my office directly at the telephone number provided in this determination for urth information. urs, cc: Mr. Allen Nitschelm