Patrick Waddell v. Wenham, Town of (SPR 20210100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 1, 2021 SPR21/0100 Dianne K. Bucco Public Resource Access Officer Town of Wenham 138 Main Street Wenham, MA 01984 Dear Ms. Bucco: I have received the petition of Patrick Waddell appealing the response of the Town of Wenham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 25, 2020, Mr. Waddell requested, “…Executive Sessions minutes from the following dates: June 23, 2020, October 6, 2020, October 13, 2020, October 20, 2020, November 3, 2020, November 10, 2020 and November 17, 2020 [and] documents referenced in the November 19, 2019 and December 2, 2019 Executive Session minutes: [(1)] Letter from the complainant to Ms. Ecker, [(2)] Email from the complainant to Ms. Ecker, [(3)] Letter from Ms. Ecker to BOS. [(4)] Investigative Report from Ms. Ecker to the BOS.” The Town provided a response on December 29, 2020. Unsatisfied with the Town’s response, Mr. Waddell petitioned this office and this appeal, SPR21/0100, was opened as a result. Previous Appeal The requested records were the subject of a previous appeal. See SPR20/2463 Determination of the Supervisor of Records (December 22, 2020). In my December 22, 2020 determination, I ordered the Town to provide a response to the request in compliance with the Public Records Law and its Access Regulations. 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

Dianne K. Bucco SPR21/0100 Page 2 February 1, 2021 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 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. Open Meeting Law It appears Mr. Waddell’s appeal is related to the release of executive session minutes and documents used at a meeting, which would raise 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 under the Public Records Law at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Waddell