Kori Tuitt v. Wilmington, Town of - Public Schools (SPR 20171057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 16, 2017 SPR17/1057 Jacqueline E. Raffi Record Access Officer Wilmington Public Schools 161 Church Street Wilmington, MA 01887 Dear Ms. Raffi: I have received the petition of Kori Tuitt of the Lowell Sun appealing the response of the Wilmington Public Schools (School) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Tuitt requested "a copy of the School Committee's executive session minutes from its Oct. 3, 2016 meeting in addition to any and all agreements made regarding the departure of former superintendent, Mary DeLai." In a response dated July 27, 2017 the School provided responsive minutes as well as a redacted version of a separation agreement between the School and Ms. DeLai. 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, § 10A(d); 950 C.M.R. 32.03(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(b)(iv); 950 C.M.R. 32.06(3); 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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Jacqueline E. Raffi SPR17/1057 Page 2 August 16, 2017 Current appeal In her appeal petition, Ms. Tuitt indicates "[t]he minutes sent to The Sun offer very few details to shed light on what was discussed during the meeting, which remained in session for more than three hours." Ms. Tuitt continues by stating "[t]hese executive session minutes are not consistent with the amount of detail provided in other School Committee meeting minutes." With respect to the relief sought, Ms. Tuitt asks this office to order the School "to provide a complete record ofthe School Committee's Oct. 3, 2016 executive session." It should be noted that the minutes contain no redactions. Also, it does not appear Ms. Tuitt objects to the redactions in the separation agreement she received; however, if that is not the case and she does object to the redactions, Ms. Tuitt may appeal this portion of the response within ninety days. See 950 C.M.R. 32.08(1)(d). Open Meeting Law The portion of Ms. Tuitt's appeal that is related to the amount of detail in the executive session minutes raises issue that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the content of the executive session minutes. See G.L. c. 30A, §23. It is recommended that you contact the AGO should you seek a determination on this issue. Additional responsive records Although the content of the minutes may invoke Open Meeting Law issues, the School must confirm whether it possess any other responsive executive session minutes or agreements made regarding the departure of the former superintendent. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). I understand a Public Records Division staff attorney contacted you and you indicated the School would provide a supplemental response. Conclusion Accordingly, I will consider this appeal closed with the proviso that the School provide Ms. Tuitt with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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.

Jacqueline E. Raffi SPR17/1057 Page 3 August 16, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Kori Tuitt