Eileen W. Mooney v. Great Barrington, Town of - Housing Authority (SPR 20191419)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 31, 2019 SPR19/1419 Jim Mercer Great Barrington Housing Authority 2 Bernard Gibbons Drive Great Barrington, MA 01230 Dear Mr. Mercer: I have received the petition of Eileen Mooney appealing the response of the Great Barrington Housing Authority (GBHA) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Mooney requested a settlement agreement between an identified individual and GBHA. Ms. Mooney initially appealed the lack of response from GBHA; however, subsequent to the opening of this appeal GBHA responded on July 22, 2019 by denying access to responsive records. Ms. Mooney informed this office she objects to this response. 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 estabUshing 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. Appeal In its July 2211 d response GBHA explains "the Great Barrington Housing Authority maintains that the separation agreement requested by Ms. Mooney is a confidential document not subject to public disclosure. The document was discussed and voted upon during the October 16, 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

Jim Mercer SPR19/1419 Page 2 July 31, 2018 2018 GBHA executive session to ensure confidentiality of its terms and maintain the privacy of the executive director." It appears Ms. Mooney's appeal is potentially related to the release of a document used at a meeting which would raise issues under the Open Meeting Law. See G. L. c. 30A, § 22(f). 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, the parties may wish to contact the AGO about this matter. See G. L. c. 30A, § 23. Notwithstanding the above, based on GBHA's response, it is unclear which exemption it is citing in order to withhold the requested record. See G. L. c. 66, § 1O (b )(iv) (a written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). Specifically, GBHA must clarify whether it is withholding the record under the Open Meeting Law or any other exemption to the Public Records Law. Co11c/usio11 Accordingly, GBHA is ordered to provide Ms. Mooney with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Eileen Mooney