Mira Belenkiy v. Wellesley, Town of - Town Clerk (SPR 20220074)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 27, 2022 SPR22/0074 K.C. Kato Town Clerk Public Records Officer Town of Wellesley 525 Washington Street Wellesley, MA 02482 Dear Ms. Kato: I have received the petition of Mira Belenkiy appealing the response of the Town of Wellesley (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 24, 2021, Ms. Belenkiy requested the following: [1] All emails between [a named individual] and emails ending in mahb.org and\or massteacher.org and\or masscosh.org. [2] All emails between [a named individual] and the following individuals . . . [3] All emails between [a named individual] the mailing lists MassCHE- discuss@googlegroups.com and\or MassCHEannounce@ googlegroups.com and\or any other MassCHE mailing lists. When searching for these records, use the time frame May 25, 2021 to Sept 1, 2021. Please include emails where [a named individual] is on the to/from/cc/ bcc line or was forwarded the email from one the addresses by a 3rd party. Previous appeal This request was the subject of a previous appeal. See SPR21/3302 Determination of the Supervisor of Records (January 3, 2022). In my January 3rd determination, I directed the Town to explain whether the named individual serves as a member of the Massachusetts Association of Health Boards (MAHB) in her official capacity as an elected member of the Wellesley Board of Health. The Town provided a further response on January 6, 2022. Unsatisfied with the Town’s response, Ms. Belenkiy petitioned this office and this appeal, SPR22/0074, was opened as a result. 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

K. C. Kato SPR22/0074 Page 2 January 27, 2022 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. The Town’s January 6th response In its January 6, 2022 response, the Town explains that the identified individual “. . . does not serve as the President of the MAHB in her official capacity as an elected member of the Wellesley Board of Health. She made the independent choice to seek election to the MAHB Board of Directors and to serve as the MAHB’s President. The Town of Wellesley does not require that any of its Board of Health members participate in the MAHB or serve on its Executive Board. Furthermore, simply because the President of the MAHB must be a member of a local board of health, does not mean that the municipal official is serving in her official capacity when she participates as the President of the MAHB. Thus, any communication that [the identified individual] sent or received as the President of the MAHB were not records that she ‘made or received’ while serving as an ‘officer or employee’ of the Town.” The Town further explains, “. . . the MAHB, a nonprofit corporation, is not subject to the Public Records Law. As noted, the phrase ‘public record’ is defined as a record ‘made or received by any officer or employee of … the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32.’ G.L. c.4, §7. The MAHB is not part of the Commonwealth. Nor is it a political subdivision thereof, defined as the metropolitan district commission or any county, hospital district, city, town, district or housing authority . . ., the Massachusetts Turnpike Authority, the Massachusetts Parking Authority . . . or any other public unit in the commonwealth. G.L. c.32, §1.”

K. C. Kato SPR22/0074 Page 3 January 27, 2022 On January 7, 2022, Cheryl Sbarra, on behalf of the MAHB, provided a response reiterating the above. In her appeal petition, Ms. Belenkiy reiterates: (1)The MAHB is an association of government entities subject to public records law. (2)Only Regular Members may hold Executive office in MAHB, and the only way to become a Regular Member is to sit on a government entity (Board of Health, subject to public records law) that is a member of MAHB (3)The Wellesley Board of Health is a government entity that is a member of the MAHB and subject to public records law. (4)[The identified individual] is a Regular Member of the MAHB, which means she is only a member because the Wellesley Board of Health is a member. (5)Therefore, [the identified individual] could only have chosen to run for the Executive office of President in her capacity as a Wellesley Board of Health member. It does not matter if other Wellesley Board of Health members weighed in on this decision. (6)The MAHB sends the Wellesley Board of Health model orders. This is one of the main services provided by MAHB to the Wellesley Board of Health. (7) If the Wellesley Board of Health is allowed to shield communication between [the identified individual] in her capacity as President of MAHB and 3rd party lobbyists, then the public will have no way to know how Wellesley Board of Health decisions are made. In light of the above, where “. . . the only way to become a Regular Member is to sit on a government entity[,]” it is unclear how the requested records were not made or received by an officer or employee of the Town. The Town must clarify this matter. Conclusion Accordingly, the Town is ordered to provide Ms. Belenkiy with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mira Belenkiy