Allen Nitschelm v. Acton-Boxborough Regional School District (SPR 20160938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords November 4, 2016 SPR16/938 D.M. Moschos, Esq. Mirick, O'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. The School provided responsive minutes with certain portions redacted. Previous appeal This request was the subject of previous appeals. See SPR16/297 Determination of the Supervisor of Records (May 24, 2016); SPR16/688 Determination of the Supervisor of Records (September 16, 2016). In my September 16 determination I found it was unclear whether redactions were made under the Public Records Law or the Open Meeting Law. I ordered the School to provide a response to Mr. Nitschelm in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). In particular, this response had to clarify whether the School is invoking the Open Meeting Law to justify any redactions. The School responded to this order in a letter dated October 14, 2016. Mr. Nitschelm informed this office he objects to this response and this appeal (SPR16/938) was opened as a result. Current appeal In the School's previous response dated June 17, 2016, you addressed 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 cited various exemptions to the Public Records Law to justify these One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

D.M. Moschos, Esq. SPR16/938 Page 2 November 4, 2016 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 cited M.G.L. c. 32 § 22(f) in support of this position. In the School's October 14 response, you indicate that redactions were made under the Public Records Law as well as the Open Meeting Law. With respect to the Open Meeting Law, the School cites, in relevant part: When the purpose for which a valid executive session was held has been served, the minutes, preparatory materials and documents and exhibits of the session shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure. G. L. c. 32 § 22(f) 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. However, whereas the School does not appear to claim the lawful purpose for the session remains ongoing, I find this office may opine on the School's exemption claims made under the Public Records Law. In camera review Upon further consideration of Mr. Nitschelm's petition, it is the finding of this office that an in camera review of an unredacted copy of the responsive records would facilitate a determination as to the applicability of the Public Records Law exemption claims. See 950 C.M.R. 32.08(6). After I complete my review of the document, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. 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). 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.

D.M. Moschos, Esq. SPR16/938 Page 3 November 4, 2016 Accordingly; 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 records without delay. 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. cc: Allen Nitschelm