Patrick J. Maloney v. Chelmsford, Town of - Town Manager (SPR 20200616)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 13, 2020 SPR20/0616 Paul E. Cohen Town Manager Town of Chelmsford 50 Billerica Road Chelmsford, MA 01824 Dear Mr. Cohen: I have received the petition of Patrick Maloney appealing the response of the Town of Chelmsford (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Maloney requested: “copies of draft minutes, including the documents and exhibits used at the session(s) for all executive sessions held by the Board of Selectmen (Board) since January 2020 relating to [s]trategies with respect to negotiations with the Town Manager and Town Manager’s contract negotiations.” Prior appeal The requested draft executive session minutes and all documents and exhibits used were the subject of a prior appeal. See SPR20/0570 Determination of the Supervisor of Records (Supervisor) (March 30, 2020). Whereas the prior appeal was opened due to the Town’s lack of response to the request, I closed SPR20/0570 as a result of the Town’s March 24, 2020 response to Mr. Maloney’s request. 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends 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

Paul Cohen SPR20/0616 Page 2 April 13, 2020 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). Current appeal On March 24, 2020, the Town provided Mr. Maloney with a response denying the request under the Open Meeting Law, as it operates through Exemption (a) of the Public Records Law. As a result, on March 30th, Mr. Maloney petitioned the Supervisor and the current appeal was opened. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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 A review of the Town’s March 24th response indicates that the Town is withholding the draft minutes of the executive session meetings that occurred since January 2020 under an Open Meeting exception for “strategies with respect to negotiations with the Town Manager and Town Manager’s contract negotiations.” The Town posits that the executive session minutes are exempt until the minutes are approved and the contract is signed.

Paul Cohen SPR20/0616 Page 3 April 13, 2020 It appears Mr. Maloney’s appeal is potentially related to the release of executive session meeting minutes, including any documents and exhibits used by the Board at these executive sessions, which raises issues under the Open Meeting Law. See G. L. c. 30A, § 22(f). Conclusion 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, I decline to provide a determination as to the disclosure of the executive session minutes withheld under the Open Meeting Law. See G. L. c. 30A, § 23. The parties may wish to contact the AGO for further guidance. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Maloney