Craig Swinson v. Richmond, Town of - Office of the Town Clerk (SPR 20211720)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2021 SPR21/1720 Angela Garrity Town Clerk Town of Richmond 1529 State Road Richmond, MA 02154 Dear Ms. Garrity: I have received the petition of Craig Swinson appealing the response of the Town of Richmond (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 22, 2021, Mr. Swinson requested “a set of minutes and a copy of the agenda for an executive session meeting.” He specified that he “believe[d] the minutes referred to ‘an anonymous complaint about a town employee.’” After communicating with the Town, Mr. Swinson clarified his request on June 23, 2021, to include “a copy of the original agenda” and “a cost estimate for providing a PII redacted copy of the letter sent to the employee.” The Town responded on June 23, 2021, providing a copy of the posted agenda, and stating the following: The minutes are not available and will not be made available for disclosure. [Richmond] town counsel has provided the following explanation: ‘As the reason for holding the executive session has not changed and disclosure would defeat the purpose for holding the executive session, the minutes are not subject to disclosure at this time.’ 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. 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

Angela Garrity SPR21/1720 Page 2 July 22, 2021 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. Open Meeting Law In a phone conversation with this office on July 16, 2021, an attorney for the Town reiterated that the Town continues to withhold the minutes and responsive documents based exclusively on the laws regarding executive session. The Town’s response and Mr. Swinson’s appeal raise issues related to the Open Meeting Law, rather than the Public Records 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 and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes and other documents in question. Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Craig Swinson Elizabeth Goodman, Esq.