Brian Keaney v. Dedham, Town of - Parks & Recreation Commission (SPR 20202199)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 25, 2020 SPR20/2199 Robert Stanley Director Department of Parks and Recreation Town of Dedham 269 Common Street Dedham, MA 02026 Dear Mr. Stanley: I have received the petition of Brian Keaney appealing the response of the Town of Dedham Department of Parks and Recreation (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Keaney requested records in the Town’s possession related to executive session minutes. Previous appeal This request was the subject of a previous appeal. See SPR20/1432 Determination of the Supervisor of Records (September 4, 2020). In my September 4th determination, the Town was ordered to provide Mr. Keaney with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Town provided said response on September 18, 2020. Unsatisfied with the Town’s response, Mr. Keaney petitioned this office, and SPR20/2199 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). 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); 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 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

Robert Stanley SPR20/2199 Page 2 November 25, 2020 establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. The Town’s September 18th response In its September 18th response, the Town states it “…has no record responsive to your request for a copy of a recording responsive to Request No. 9…” The Town further states “…the minutes responsive to Request No. 9 will be withheld under the Open Meeting Law as it operates through Exemption (a) of the Public Records Law. Further, to the extent that the matters at issue relate to personnel and personal matters, such records will also be withheld in accordance with the provisions of G.L. c.214, §1B, the so-called ‘privacy statute.’” The Town also indicates it is withholding responsive records pursuant to Exemptions (c) and (f). The Town explains “[t]he Open Meeting Law, G.L. c. 30A, §§18-25 specifically addresses the confidentiality of disciplinary and other personnel materials, government litigation, collective bargaining. In this case, the purpose for which the Parks and Recreation Commission entered executive session at its June 22, 2020 meeting, Purpose 1 under the Open Meeting Law, has not yet expired. Purpose 1, G.L. c.30A, §21(a)(1) allows a public body to meet in executive session to discuss, ‘To discuss the 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.’” In his appeal, Mr. Keaney contends “[i]f the actions taken during the executive session could be disclosed, if the reason Commissioner Maher was censured could be shared, and if the entire meeting could have been held in open session, I am not sure how these minutes can be withheld in their entirety under exemptions (a), (c), or any other.” Open Meeting Law The nature of Mr. Keaney’s request and the responses that were provided to him raise issues that invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office. Consequently, I

Robert Stanley SPR20/2199 Page 3 November 25, 2020 decline to opine on this matter at this time. See G. L. c. 30A, §23. It is recommended that the parties contact the Attorney General’s Office if they seek a determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Brian Keaney Lauren F. Goldberg, Esq.