Cindy L. Christiansen, PhD v. Milton, Town of - Town Clerk (SPR 20200733)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2020 SPR20/0733 Susan M. Galvin Town Clerk Town of Milton 525 Canton Avenue Milton, MA 02186 Dear Ms. Galvin: I have received the petition of Cindy L. Christiansen appealing the response of the Town of Milton (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Christiansen requested the Board of Selectmen executive session minutes from February 12, 2020 and February 26, 2020. In a May 5, 2020 response, the Town denied Ms. Christiansen’s request for the responsive executive session minutes under the Open Meeting Law, G. L. 30A, § 21(a)(1). As a result of the denial, Ms. Christiansen petitioned the Supervisor of Records (Supervisor) and appeal SPR20/0733 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

Susan M. Galvin SPR20/0733 Page 2 May 19, 2020 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 May 5th response indicates that the Town is withholding the executive session minutes of the February 12, 2020 and February 26, 2020 meetings under the Open Meeting Law exception for discussion of “reputation, character, physical condition or mental health, rather than professional competence, of an individual, or to discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual pursuant to G. L. c. 30A, § 21(a)(1).” The Board has determined that it will not release the executive session minutes because their publication would defeat the lawful purposes of the executive sessions on April 12th and April 26th. In her petition, Ms. Christiansen asserts, “I expected and would find it acceptable to receive redacted records that show the time, date, elected officials in attendance, [T]own employees in attendance, time the executive sessions started and ended, and any other information that is not privileged or excluded by law. This information is not protected by MA General Law.”

Susan M. Galvin SPR20/0733 Page 3 May 19, 2020 Conclusion Ms. Christiansen’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 and any other information that the Board 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: Cindy L. Christiansen