Paul McLaughlin v. Adams, Town of - Town Clerk (SPR 20210850)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2021 SPR21/0850 Haley A. Meczywor Town Clerk Adams Town Hall 8 Park Street Adams, MA 01220 Dear Ms. Meczywor: I have received the petition of Catherine Foster appealing the response of the Town of Adams (Town) to a request for public records. G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 17, 2021, Ms. Foster requested “a copy of the executive session minutes from January 27 this year when they are available to be released.” The Town provided a response on February 18, 2021. Unsatisfied with the Town’s response, Ms. Foster petitioned this office and this appeal, SPR21/0850, 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 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. 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

Haley A. Meczywor SPR21/0850 Page 2 April 20, 2021 The Town’s February 18th response In its February 18, 2021 response, the Town states that the executive session will remain “private until such time as the BOH in consultation with [ the Town’s Attorney] decides to release them.” The Town in its February 18th response also pointed to an email it sent to Ms. Foster on February 4, 2020 explaining the January 27, 20021 Board of Health executive session minutes “must remain closed for the time being.” The Town provided a supplemental response on April 7, 2021 stating it believes the “records of this executive session are protected from disclosure under exception no. 1 of the Open Meeting Law since the meeting was convened ‘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 the April 7th supplemental response, the Town also claims exemption (c) applies “to protect the executive session minutes and records from disclosure. The purpose of the executive session was to protect the privacy of those person(s) who were the subject of the meeting. The Board believes that the disclosure of such information constitutes an unwarranted intrusion into the privacy of those person(s).” In a phone call with this office on April 20, 2021, the Town confirmed that the executive session still remains closed. Open Meeting Law Given that this appeal is related to an executive session, this raises issues that potentially invoke the Open Meeting Law. 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: Catherine Foster