Timothy A. Toomey v. Rowley, Town of - Town Clerk (SPR 20171680)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 12, 201 7 SPR17/1680 Susan G. Hazen Town of Rowley 139 Main Street Rowley, MA O1 969 Dear Ms. Hazen: I have received the petition of Timothy A. Toomey appealing the response of the Town of Rowley (Town) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Toomey requested "[a]ny and all information regarding executive session minutes for the executive session conducted by the Board of Selectmen for the September 18, 2017 meeting. This includes but it not limited to investigations conducted by either board, complaints, grievances or joint board investigation reports." The Town denied his request claiming it "fall[s] under the Open Meeting Law" and "should be sent directly to the Public Body in question." 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, § lOA(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, § lO(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-onl-¥-citeanexemption,-but-mu-S-talsostatewhy theexemptionappliest0the-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, § 1 O(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

Susan G. Hazen SPR17/1680 Page 2 December 12, 2017 Open Meeting Law In its response, the Town indicates that "requests for minutes for either regular open meetings or executive session meetings, fall under the Open Meeting Law rather the Public Records Law. Under this law, the requestor must direct the request directly to the public body in question." Ms. Hazen, on behalf of the Town, further indicates that "[as] Records Access Officer a [Open Meeting Law] request does not come through [her] but should be sent directly to the Public Body in question." In his petition for appeal, Mr. Toomey indicates "[t]he Town did not provide a valid response; it was an evasive redirecting non-responsive response. I requested the 'minutes of a very specific meeting'. Requests or questions are no longer allowed at the selectman or the water board meetings, therefore the town's response is not possible since their October 30, 2017 meeting where the selectman voted to take 'comments only' instead of citizen's query." Based on his petition, it appears Mr. Toomey is appealing his request for the executive session minutes only. The nature of Mr. Toomey's request and the content of the Town's response raise issues that invoke the Open Meeting Law. Please be advised that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office. Therefore, I decline to provide a determination as to the executive session minutes. See G. L. c. 30A, § 23. It is recommended that you contact the Division of Open Government within the Office of the Attorney General should you seek a determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Timothy A. Toomey