Brian DeLacey v. Malden, City of (SPR 20190416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 5, 2019 SPR19/397; SPR19/416 Kenneth Rossetti, Esq. Assistant City Solicitor City of Malden - Legal Department 110 Pleasant Street, 3rd Floor Malden, MA 02148 Dear Attorney Rossetti: I have received the petitions of Brian DeLacey appealing the responses of the City of Malden - Office of the City Solicitor (City) to requests for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on January 22, 2019 Mr. DeLacey requested "Minutes, media, and documents from the Executive Session file number 664-15 of 12/8/15" (SPR19/397). The City responded to this request on January 30, 2019. On December 15, 2018 Mr. DeLacey requested "to inspect or copy minutes from the Executive Session of December 8, 2015, when the Council met 'in executive session to discuss appraisal of the Malden Hospital Property.' My request seeks minutes, media, and documents used in discussions of the Executive Session on December 8, 2015, which lasted approximately one hour - more than three years ago" (SPRl 9/416). The City responded to this request on December 20, 2018 and January 17, 2019. Unsatisfied with these responses, Mr. DeLacey appealed. Appeal In its January 30th response to the January 22nd response, the City indicates" ... the Council declined producing those minutes based upon (i) the litigation privilege that surrounds discussion of the 184-200 Pleasant Street litigation, MGL c. 30A, § 22(a)(3), and (ii) the exemption that permits the Council to convene in Executive Session to deliberate about the value ofreal property, MGL c. 30A, § 22(a)(6). Thus, since the Council determined that the subject minutes are privileged from disclosure, the minutes that you requested do not constitute a public record discoverable under the Public Records Law, MGL c. 66, § 10." In the January 17th response to the December 15th request, you assert "[w]hile I am precluded by both the Open Meeting Law and the attorney-client privilege from divulging the 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

Kenneth Rossetti, Esq. SPR19/397; SPR19/416 Page2 March 5, 2019 content of the Council's deliberation in Executive Session, I am authorized to report on behalf of the Council, in reply to your December 15, 2018 public records request to the City, that after reviewing the subject minutes, the Council declined producing those minutes." The City further asserts, in part, that" ... at the outset that under the Open Meeting Law, where, as here, Executive Session minutes constitute documentation that is privileged from disclosure under MGL c. 4, § 7, cl. 26 (which details specific categories of documents that are not subject to disclosure under the Public Records law, MGL c. 66, § 10), the public body whose Executive Session minutes are sought is entitled to decline disclosure if publication of the minutes would defeat the lawful purpose of the Executive Session. MGL c. 30A, § 22(f)." With respect to the executive session at issue, you note that "[b] ecause the development of the Malden Hospital Property continues to be a fluid issue that bears upon policy considerations of the City and the City's concomitant negotiating position, the minutes of the December 8, 2015 Executive Session regarding appraisal of the Malden Hospital Property continue to be privileged because publication of the same would negatively impact the City's negotiating position and thereby defeat the lawful purpose of the December 8, 2015 Executive Session." Open Meeting Law The issues raised in Mr. DeLacey's requests and appeals pertain to the release of executive session materials and appear to 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 (AGO) and not this office. Therefore, I decline to provide a determination as to the status of these records. See G. L. c. 30A, § 23. It is recommended that Mr. DeLacey contact the Division of Open Government within the AGO should he seek a determination on these issues. Sincerely, · ~ Rebecca S. Murray Supervisor of Records cc: Brian DeLacey