Brian Keaney v. Dedham, Town of - Public Library (SPR 20201331)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 24, 2020 SPR20/1331 Paul M. Munchbach Town Clerk Records Access Officer Dedham Town Hall 450 Washington Street Dedham, MA Dear Mr. Munchbach: I have received the petition of Brian Keaney appealing the response of the Town of Dedham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 6, 2020, Mr. Keaney requested: “1) The minutes of all meetings of the Board of Library Trustees since May 28, 2020. 2) A document titled "Response to Brian Keaney OML Complaint of 7-27-2020," which was signed by former [named] Trustees [which] states that "...members of the board resigned at different times over the course of more than 24 hours as confirmed by emails sent to one another [and] copies of those emails mentioned.” 3) The same document says that the former trustees received legal counsel and quotes from it [and] … copy of that opinion. 4) Any emails sent in the last six months sent by a member of the trustees that includes a quorum of trustees.” Unsatisfied with the response, Mr. Keaney appealed and SPR20/1331 was opened as a result. 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). 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 M. Munchbach SPR20/1331 Page 2 August 24, 2020 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). The Town’s August 7th Response In its August 7th response, the Town responded to Mr. Keaney’s request as follows: “1) All meeting minutes that I have received from the Board of Library Trustees are posted on the town website … [and] [a]ttached are draft minutes from the June 3, 2020 BLT meeting. 2) The only email I have from the trustees (individual or collective) regarding them resigning is from [named Trustee] (see attached "Resigned") 3) [no] document regarding legal counsel referred to in the OML response [was received]. 4) I…attached [is] 34 email threads that included three or more trustees. I did not include emails that I sent to them unless one replied to all.” Current Appeal Mr. Keaney requested meeting minutes held on July 15th and July 21st and any additional emails from former trustees. Further, Mr. Keaney contends that there is an opinion document from legal counsel as well as additional records relating to a quorum of trustees Burden of specificity; segregable portions Under the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. 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 …”); - se - e -al-so- -G-lo-b-e -N-e-w-s-p-ap-e-r Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; see also Reinstein ------------ v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemption are narrowly construed and are not blanket in nature. The Town must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). The Town’s August 7th response did not contain the specificity required in a denial of access to public records. The Town must clarify what records it has in its possession, custody or control that are responsive to Mr. Keaney’s request. Accordingly, I find that the Town has not met its burden to withhold responsive records as described above; in particular, it has not identified which specific records it is withholding, nor

Paul M. Munchbach SPR20/1331 Page 3 August 24, 2020 has it provided specific reasons for the applicability of these exemptions as required by G. L. c.66, § 10(b )(iv). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Town is ordered to provide Mr. Keaney with a response to the request, provided 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: Brian Keaney