Nancy Tomasovich v. Monterey, Town of (SPR 20213119)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 8, 2021 SPR21/3119 Jonathan Levin, Esq. Records Access Officer Town of Monterey 435 Main Street Monterey, MA 01245 Dear Attorney Levin: I have received the petition of Nancy Tomasovich appealing the response of the Town of Monterey (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2021, Ms. Tomasovich requested, “Under the [Open Meeting Law]…the draft minutes from the B[oard of Selectmen] executive session dated October 4th, 2021.” The Town provided a response on November 17, 2021. Unsatisfied with the Town’s response, Ms. Tomasovich petitioned this office and this appeal, SPR21/3119, 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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

Jonathan Levin, Esq. SPR21/3119 Page 2 December 8, 2021 The Town’s November 17th On November 17, 2021, the Town stated, “…the timeframe within which the Town shall produce the records shall be extended to a date no greater than an additional twenty-five (25) business days, The reasons for this [extension] are as follows. You gave asked for ‘draft minutes from the BOS executive session…’ Executive session minutes…are (or may be) exempt from public disclosure…Therefore, I must present your request to the Select Board…I intend to bring this matter to the attention of the Select Board…on November 17, 2021, and it will be up to them to set the framework and timetable for disclosure, if any.” Current Appeal On November 28, 2021, Ms. Tomasovich stated, “please inform the [Town] that [their] response is not germane, and [they] are out of compliance with [their] duties.” Where the Town has indicated that they intend to provide a response within the allowed statutory timeframe, it is unclear the basis of Ms. Tomasovich’s appeal. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). Open Meeting Law The Town’s response and Ms. Tomasovich’s appeal also raise issues related to 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 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: Nancy Tomasovich