Paul O'Leary v. North Reading, Town of - Town Administrator (SPR 20200640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 24, 2020 SPR20/0640 Michael P. Gilleberto Town Administrator Town of North Reading 235 North Street North Reading, MA 01864 Dear Mr. Gilleberto: I have received the petition of Paul O’Leary appealing the response of the Town of North Reading (Town) of a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 23, 2019, Mr. O’Leary requested records relating to a certain meeting held on August 6, 2019. In a January 9, 2020 letter, you denied Mr. O’Leary’s request under Exemption (e) of the Public Records Law. As a result, Mr. O’Leary 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, § 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 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). 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

Mr. Michael P. Gilleberto SPR20/0640 Page 2 April 24, 2020 Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7 (26)(e). Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as "personal" to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. In the Town’s January 9th response, you informed Mr. O’Leary: “[y]our request seeks personal notes that I took during said meeting for my own record. These notes are exempt and may be withheld pursuant to Exemption (e) to the Public Records Law [G. L. c. 4, § 7(26)(e)]. I took the notes for my own personal use, I have not shared the notes with anyone else, and they were not prepared pursuant to any legal requirement or to be maintained as part of the Town’s files.” Based the Town’s response that the notes are personal to the Town Administrator, were not shared with anyone else and were not required to be retained in the Town’s files, I find that the Town has met its burden of specificity under Exemption (e) to withhold the notes from the August 6, 2019 meeting. Identifying records in the Town’s possession In his April 6, 2020 petition to the Supervisor, Mr. O’Leary states that he requested all documents from the August 6th meeting, not only any notes taken at the meeting. Your January 9th response states, “[w]hile I do have some records from that meeting, my review indicates that they are quite incomplete.” Under the Public Records Law, a records custodian must identify the records responsive to a request and that it has in its possession, custody and control. See G. L. c. -- 66, § 10(a)(ii) (The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the

Mr. Michael P. Gilleberto SPR20/0640 Page 3 April 24, 2020 request). I find that the Town must clarify whether it has additional records responsive to Mr. O’Leary’s request. Conclusion Accordingly, the Town is ordered to provide Mr. O’Leary with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Paul O’Leary