Caitlin Russell v. Fairhaven, Town of - Board of Selectmen (SPR 20161094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords December 5, 2016 SPR16/1094 Anne O'Brien Administrative Assistant Board of Selectmen-Town Administrator Town of Fairhaven 40 Center Street Fairhaven, MA 02719 Dear Ms. O'Brien: I have received the petition of Caitlin Russell appealing the response ofthe Town of Fairhaven (Town) -Board of Selectmen (Board) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in an email dated July 20, 2016 Ms. Russell requested a copy of all executive session meeting minutes of the Town's Board of Selectmen from 2010-through the end of2015. The Town released seventeen sets of minutes, some of which were redacted without providing any applicable exemptions in the Public Records Law to support the redactions. Ms. Russell appealed. Prior appeal The requested records were the subject of a prior appeal. See SPR16/865 Determination of the Supervisor of Records (October 20, 2016). By email dated July 26, 2016 you provided Ms. Russell with copies of the Board's executive session meeting minutes for 2014-2015, with no explanation as to why executive session minutes from prior years was not provided. Ms. Russell appealed. In my October 20 determination, I closed the appeal with the proviso that the Town review the July 20 request and provide a complete written response. In compliance with my October 20 determination, you provided a revised response to Ms. Russell, dated November 8, 2016. In your letter, you state that Board held one hundred and forty-five (145) executive sessions from 2010-2015, and that the Board has released seventeen (17) sets of minutes. Ms. Russell was also advised that the Board will review two (2) or more executive session meeting minutes at each of its scheduled meetings. As the minutes are released, you promised to provide Ms. Russell with minutes, unless the Board opts to maintain confidentiality, and then you would inform Ms. Russell with the applicable exemption(s). As in 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

Anne O'Brien SPR16/1094 Page2 December 5, 2016 the initial response, you provided no exemption to justify withholding the remaining responsive meeting minutes. Basis of the current appeal By email dated November 28, 2016 Ms. Russell appealed the Board's November 8 response concerning the amount of time the Board is taking to review and release minutes, and that the minutes that were already released contain redactions which the Board has failed to specifically claim any exemptions in the Public Records Law to allow the redactions. The Public Records Law 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). 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. 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. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Open Meeting Law Ms. Russell states in her petition to this office that the Board is not following the procedural rules of the Open Meeting Law regarding reviewing and releasing executive session minutes in a timely fashion. Please be advised, the Supervisor of Records has no authority to render a determination on the procedures and requirements of the Open Meeting Law. It is the Division of Open Government within the Office of the Attorney General (AGO) that has authority over the Open Meeting Law. I advise Ms. Russell and the Board to consult with the AGO regarding any questions or issues regarding the Open Meeting Law.

Anne O'Brien SPR16/1094 Page 3 December 5, 2016 Board failed to cite any exemption in withholding and redacting public records The Board provided certain executive session minutes for the Board but failed to cite any exemption to support redactions made to the released minutes. Further, the Board failed to cite any exemption to support the withholding of the remaining minutes that have not yet been reviewed and provided. Order I find the Board has failed meet its statutory and regulatory obligation in denying access to public records. Accordingly, the Board is hereby ordered to review Ms. Russell's request and provide a revised written response within ten (1 0) days, prepared in a manner consistent with this order, the Public Records Law and its Regulations. A copy of any such response must be provided to this office. It is preferable to send an electronic copy o this response to this office at pre@sec.state.ma.us. cc: Caitlin Russell