Allen Nitschelm v. Acton-Boxborough Regional School District (SPR 20160688)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/688 Mr. D.M. Moschos, Esq. Mirick, 0' Connell, DeMallie & Lougee, LLP 100 Front Street Worcester, MA 01608 Dear Attorney Moschos: I have received the petition of Allen Nitschelm, on behalf of Acton Forum, appealing the Acton-Boxborough Regional School District's (School) response to his requests for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, on February 16, 2015 and October 18, 2015 Mr. Nitschelm requested copies of the minutes from executive session meetings held by the School Committee. Previous appeal It should be noted that this request was the subject of a previous appeal. See SPRl 6/297 Determination of the Supervisor of Records (May 24, 2016). In my May 24 determination I found the School had not met the burden of specificity to justify redactions within the responsive executive session minutes. I closed the appeal with the proviso that the School provide Mr. Nitschelm with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Access Regulations (Regulations). The School responded to this order in a letter dated June 17, 2016. Mr. Nitschelm informed this office he objects to this response and this appeal (SPR16/688) was opened as a result. Current appeal In the School's June 17 response, you address each redaction made within minutes from six (6) executive sessions that took place on the following dates: October 9, 2014, December 11, 2014, January 22, 2015, March 19, 2015, June 25, 2015, and July 22, 2015. The School cites various exemptions to the Public Records Law to justify these redactions, including Exemptions (a), (c), and (f). G. L. c. 4, § 7(26)(a), (c), (f). The School also redacted information under the attorney-client privilege and cites M.G.L. c. 32 § 22(f) in support of this position. 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. SPR16/688 Page 2 September 16, 2016 Open Meeting Law 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). The AGO' s determination addressed an Open Meeting Law matter; however, the AGO also indicated "[t]he Committee may continue to withhold the minutes in whole or in part under any applicable exemptions to the Public Records Law or the attorney/client privilege." In light of the AGO's determination, the School provided redacted copies of the minutes of the October 9, 2014 executive session on December 21, 2015. Mr. Nitschelm appealed these redactions. With respect to the other five (5) executive session minutes, it is unclear based on the School's response whether certain redactions were made under the Public Records Law or the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. See G. L. c. 30A, § 23. I understand an attorney on my staff contacted you about this matter. Conclusion Accordingly, the School is hereby ordered to provide a response to Mr. Nitschelm provided in a manner consistent with this order, the Public Records Law and its Regulations. In particular, this response must clarify whether the School is invoking the Open Meeting Law to justify any redactions. 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. In camera review If the School is not invoking the Open Meeting Law, in order to facilitate my review of the matter, the School is hereby ordered to provide this office with umedacted copies of the responsive records for in camera review along with an explanation of its position regarding the applicability of the claimed exemptions to the responsive record. Please be advised that any cover letter accompanying the materials submitted for in camera review will be considered a public record and will be retained as part of the file associated with this appeal. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L. c. 66, § 1. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records).

Mr. D. M. Moschos, Esq. SPR16/688 Page 3 September 16, 2016 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. cc: Mr. Allen Nitschelm