Stephanie McGowan v. Foxboro, Town of - Town Clerk (SPR 20192120)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 30, 2019 SPR19/2120 Robe1i E. Cutler, Jr. Town Clerk and Board of Registrars Town of Foxborough 40 South Street Foxborough, MA 02305 I have received the petition of Stephanie McGowan appealing the response of the Town of Foxborough (Town) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. McGowan requested the June 25, 2019 Board of Selectmen executive session meeting minutes. In October 7 and October 9, 2019 responses, the Town denied Ms. McGowan's request in its entirety under Exemption (a) and G. L. c. 30A, § 22(f). As a result, Ms. McGowan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 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 requestedrecord. G. L. c. 66, § lO(b)(iv) (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 ... "); 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). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords that are: 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

Robert E. Cutler, Jr. SPR19/2120 Page 2 October 30, 2019 specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Open Meeting Law The Town's Legal Counsel, Christopher J. Kenny, Esq. of Clifford & Kenny, LLP, states in his response, "[p] ursuant to G. L. c. 30A, § 22(±), the [Town] Board of Selectmen have determined that the requested June 25, 2019 executive session minutes shall be withheld from disclosure to the public in their entirety under G. L. c. 4, sec. 7(26)(a). Therefore, the record(s) you have requested are exempt under the [P]ublic [R]ecords [L]aw." It appears Ms. McGowan's appeal is related to the release of the Board of Selectmen executive session minutes which raises issues under the Open Meeting Law. See G. L. c. 30A, § 22(±). 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 paiiies may wish to contact the AGO about this matter. See G. L. c. 30A, § 23. Accordingly, I will consider this administrative appeal closed. Sincerely, ~r~ Supervisor of Records cc: Stephanie McGowan Christopher J. Kenny, Esq., Clifford & Kenny, LLP