John Zimini v. Dracut, Town of - Office of the Town Clerk (SPR 20213153)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15, 2021 SPR21/3153 Victor Garofalo Assistant Town Manager Town of Dracut 62 Arlington Street Dracut, MA 01826 Dear Mr. Garofalo: I have received the petition of John Zimini appealing the response of the Town of Dracut (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 3, 2021, Mr. Zimini requested “copies of all forms, instructions, score sheets, individual Selectmen evaluation documents, including written comments and scoring from each individual selectmen and any other related documents relating to the 2021 evaluation of [the] Dracut Town Manager . . . by the Board of Selectmen. This request includes copies of any emails that are related to said 2021 evaluation of [the] Dracut Town Manager.” The Town responded on November 29, 2021, providing a number of responsive records, including some in redacted form, and citing Exemption (c) of the Public Records Law. See G. L. c. 4, § 7(26)(c). The Town also cites the Open Meeting Law. See G. L. c. 30A, § 22. Unsatisfied with the Town’s response, Mr. Zimini appealed, and this case 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 agency or municipality 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. Att’y 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 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

Victor Garofalo SPR21/3153 Page 2 December 15, 2021 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Current Appeal In his appeal petition, Mr. Zimini contends that: These documents were part of the Selectman evaluation to determine a rating for the manager and subsequently to be used for the basis of a pay raise and new contract. The ratings were discussed in open session and some of the selectmen talked about their comments on the evaluation. [Mr. Zimini] believe[s] that this makes the entire evaluation documents including the comments made during the review to be deemed as PUBLIC documents and should have [been] released. The Town’s November 29th and December 7th Responses In its November 29, 2021 response, the Town states the following: The Town Manager’s evaluation was the subject of a recent open session of the Board of Selectmen. The Open Meeting Law, M.G.L. c.30A, §22 provides that documents used in an open session are public records notwithstanding any exemption that may otherwise be applicable. None of the individual evaluations were used in the open session and the parts that are redacted were not referenced or used in the open session. Only the aggregated numbers were discussed and are therefore disclosed. In its December 7, 2021 letter to this office and Mr. Zimini, the Town further elaborates: [The Town Manager’s] performance was reviewed by the Board of Selectmen at its open session meeting on October 26, 2021. . . . No individual category evaluation scores were discussed or released in the open session, but each selectman’s overall score was discussed and is released on the aggregated personnel evaluation form produced to Mr. Zimini. No comments that are redacted were read in the open session. The only comments made during the open session were extemporaneous. Open Meeting Law The Town’s response and Mr. Zimini’s appeal petition 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 Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a determination on these issues.

Victor Garofalo SPR21/3153 Page 3 December 15, 2021 Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Zimini