Michael Murray v. Concord, Town of - Public Schools and Carlisle Regional School District (SPR 20213221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 2021 SPR21/3221 Dr. Laurie Hunter Superintendent Concord-Carlisle Regional School District 120 Meriam Road Concord, MA 01742 Dear Dr. Hunter: I have received the petition of Michael Murray appealing the response of the Concord- Carlisle Regional School District (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2021, Mr. Murray requested the following: The full minutes of the executive session labeled roman numeral IV – “To conduct strategy sessions concerning whether to hear a Step 3 Grievance filed by CTA” – on the publicly released minutes . . . from the Joint School Committee meeting on June 15, 2021. The School responded on December 9, 2021, citing Exemption (a) of the Public Records Law, along with the Open Meeting Law, for withholding responsive records. See G. L. c. 4, § 7(26)(a); G. L. c. 30A, § 22(f). Unsatisfied with the School’s response, Mr. Murray 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 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

Dr. Laurie Hunter SPR21/3221 Page 2 December 21, 2021 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. Current Appeal In his appeal petition, Mr. Murray contends that “the voting records of elected officials are generally considered public record, even if they occur in executive session. While it is conceivable that there may be some aspects of the executive session that could be exempt from public records, a complete denial of my request is not reasonably defensible.” The School’s December 9th Response In its December 9, 2021 response, the School cites Exemption (a), and the Open Meeting Law for withholding responsive records. See G. L. c. 4, § 7(26)(a); G. L. c. 30A, § 22(f). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit

Dr. Laurie Hunter SPR21/3221 Page 3 December 21, 2021 access to the listed individuals or entities. Under Exemption (a), the School argues that “regarding the executive session minutes, these minutes are exempt from disclosure under M.G.L. c.4, §7(26)(a) and M.G.L. c.30A, § 22(f).” Open Meeting Law The School’s response and Mr. Murray’s appeal 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. I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes, including the related voting record. Written Notice of Denial In his appeal petition, and in a subsequent phone conversation with this office, Mr. Murray expressed concern that “the RAO’s denial response also did not meet the standards set forth in state law about the required elements of a records denial.” The School is advised that in accordance with 950 C.M.R. 32.06 (3)(c)(8), a “written notice of denial shall include . . . a statement informing the requester of the right of administrative appeal to the Supervisor under 950 CMR 32.08(1) and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court.” Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Murray is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael Murray