Paul O'Leary v. North Reading, Town of - Town Administrator (SPR 20200691)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2020 SPR20/0691 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, Mr. O’Leary requested a copy of the April 22, 2019 Board of Selectmen’s executive session meeting minutes. In a January 28, 2020 letter, the Town informed Mr. O’Leary that the Board of Selectmen met on January 27, 2020, reviewed the April 22, 2019 executive session meeting minutes, and voted to continue withholding the minutes pursuant to G. L. c. 30A, § 22(g). As a result, Mr. O’Leary petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. O’Leary contends that the executive session meeting minutes pertain to allegations relating to himself and on-going litigation. Status of the requestor Please note, Mr. O’Leary’s interest in the responsive record does not afford him any greater right of access to the executive session meeting minutes under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. O’Leary’s status will play no role in a determination as to whether the record should be disclosed to the public in its entirety. 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 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

Michael P. Gilleberto SPR20/0691 Page 2 May 7, 2020 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). 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 January 28th response indicates that the Town is withholding the executive session minutes of the April 22, 2019 meeting under the Open Meeting Law exception for on-going litigation and a personnel matter.

Michael P. Gilleberto SPR20/0691 Page 3 May 7, 2020 At the January 27th meeting, the Board of Selectmen (Board) considered Mr. O’Leary’s request to release the minutes; however the Board voted to withhold the minutes, in their entirety, under the Open Meeting Law exceptions for on-going litigation and personnel. In the Town’s response, Mr. O’Leary was informed that the Board determined that release of the minutes at this time will defeat the lawful purpose of the April 2019 executive session. Conclusion Mr. O’Leary’s appeal is related to the release of executive session meeting minutes, which raises 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, 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: Paul O’Leary