Kelsey Bode v. Andover, Town of - Public Schools (SPR 20171537)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 7, 2017 SPR17/1537 Susan K. Mccready Town of Andover - Public Schools 36 Bartlet Street Andover, MA 01810 Dear Ms. McCready: I have received the petition of Kelsey Bode appealing the response of the Town of Andover 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. Bode requested "to inspect or obtain copies of all the minutes from the August 31, 2017 and September 7, 2017 Andover School Committee executive sessions regarding negotiations around [an identified Superintendent] of Andover Public Schools." The School provided responses on October 5, 2017, and October 18, 2017, in which it provided a redacted copy of the responsive record and withheld portions under Purpose 2 of the Open Meeting Law statute, G. L. c. 30A, § 22(f). Contending that the responsive record was excessively and heavily redacted, Ms. Bode petitioned this office and this appeal, SPRl 7/1537, was opened as a result. 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly definedto 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, § IO(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 withhdd or redacted portion of the responsive record. 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

Susan McCready SPRl 7/1537 Page 2 November 7, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The School's Octobers"' response In the School's October 5th response, it indicated that the executive session minutes had not yet been reviewed to determine whether they may be released, therefore, they were exempt from disclosure in their entirety under the Open Meeting Law, G. L. c. 30A, § 22(f), as it operates through-Exemption (a) of the Public Records Law. The School indicated that, "[a]lthough your request does not so state, to the extent that you intend to make your request pursuant to Section 22(d )(2) of the Open Meeting Law, the Committee will first need to review the requested minutes to determine whether they may be released." The School stated that should the Committee determine to release any portion of the minutes, such portions will be provided to Ms. Bode. The School's October 18"' response In its October 18th response, the School indi~ated that the Andover School Committee held a meeting to review minutes from the executive session held on August 31, 2017 and September 7, 2017, in response to Ms. Bode's public records request. The Committee then concluded unanimously to release the executive session minutes in redacted form. The School indicated that the Committee entered into an executive session under "'Purpose 2' to conduct strategy sessions in preparation for ongoing negotiations with non-union personnel. ... On September 28, 2017, the Committee voted to approve the contract amendment which was the subject of the executive session discussion. Therefore the portions of the executive session minutes pertaining to the approved contract amendment are appropriate for release at this time. The redacted portions of the executive session minutes continue to be withheld under 'Purpose 2' because disclosure would defeat the lawful purpose for which the executive session was held. Finally, additional redactions were necessary to protect attorney client privilege communications." Open Meeting Law Ms. Bode's appeal which relates to the amount of detail redacted in the executive session minutes, together with the responses from the School, raise issues that invoke 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. Therefore, I find it is necessary to obtain an opinion from the AGO's Division of Open Government (Division) as to whether the School is properly claiming any portion of the Open Meeting Law to withhold portions of the responsive records.

Susan McCready SPR17/1537 Page 3 November 7, 2017 Conclusion For the reason stated above, I will consider this administrative appeal closed. The parties may contact the Attorney General's Office if they seek a determination on this issue. Sincerely, Rebecca S. Murray .S upervisor of Records cc: Kelsey Bode