Rhonda Bartlett v. Orange, Town of - Town Clerk (SPR 20180873)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 18, 2018

SPR18/873 Nancy M. Blackmer

Orange Town Clerk 6 Prospect Street Orange, MA 01364

Dear Ms. Blackmer:

I have received the petition of Rhonda Bartlett appealing the response of the Town of Orange (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Bartlett requested “a copy of the draft contract that is under review with the Town Counsel for the [Town Administrator] position.”

The Town’s June 11" response

The Town responded to Ms. Bartlett’s request on June 11, 2018, claiming that the requested contract was not a public record. Unsatisfied with this response, Ms. Bartlett petitioned this office, and this appeal 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, § 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.

It is my understanding that a Public Records Division staff member contacted you regarding this appeal, and you provided a supplemental response.

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

Nancy M. Blackmer SPR18/873 Page 2 June 18, 2018

The Open Meeting Law

In its supplemental response dated June 15, 2018, the Town asserts the following to

support its claim that the requested records may properly be withheld from disclosure under the Open Meeting Law:

All contract negotiations have been conducted in Executive Session under MGL Chapter 30A, Section 21 (a), Reason #2 — To conduct strategy sessions in preparation for negotiations with nonunion personnel or to conduct collective bargaining sessions or contract negotiations with nonunion personnel.

The Town further explains:

Once this contract has been approved by Town Counsel and signed by both the Board of Selectmen and the Town Administrator, the contract will become public and I would be happy to provide you a copy of this contract.

Please be advised that the interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office. Whereas the Town is withholding documents used in executive session and is asserting that the purpose of the executive session has not expired, I decline to opine on this matter. See G. L. c. 30A, § 21(a). It is recommended that you contact the AGO should you seek a determination on this issue.

A lence

Rebecca S. tulecea I q

Supervisor of Records ce: Rhonda Bartlett