Sidney R. Harris v. Methuen, City of - City Clerk (SPR 20211618)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 15, 2021 SPR21/1618 John J. Wilson, Jr., Esq. City Clerk City of Methuen 41 Pleasant Street Methuen, MA 01844 Dear Attorney Wilson, Jr.: I have received the petition of Sidney Harris appealing the response of the City of Methuen (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 11, 2021, Mr. Harris requested, “a copy of the audio recording of the executive meeting held by the Methuen City Council on June 10, 2021.” The City provided a response on June 28, 2021. Unsatisfied with the City’s response, Mr. Harris petitioned this office and this appeal, SPR21/1618, 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

John J. Wilson, Jr., Esq. SPR21/1618 Page 2 July 15, 2021 The City’s July 12th supplemental response The City submitted a supplemental response on July 12, 2021 regarding Mr. Harris’s June 20, 2001 appeal to this office. The City stated that the records sought involve executive session records. The City explained “Mr. Harris disputes the City Council's decision to convene in executive session under the litigation provision of Exemption 3 of the Open Meeting Law, MGL c. 30A, § 21(a)(3), which, as here, allows a public body to meet in executive session to discuss strategy with respect to litigation following a declaration by the body's Chair that open discussion will have a detrimental effect on the body's litigating position. See MGL c. 30A, § 21(a)(3).” The City went on to explain the “City Council took up the two nominations to the Commission (at approximately the 39:38 mark of the video), and the Council tabled the nominations after Mr. Harris' threat of litigation, following counsel's advice that a discussion of the legality of the nominations should occur in executive session based upon Mr. Harris' litigation threat.” Open Meeting Law This appeal is related to executive session records which 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: Sidney Harris Peter J. McQuillan, Esq.