Jon Sylbert v. Monterey, Town of (SPR 20220449)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 4, 2022 SPR22/0449 Melisa Noe Town Administrator Town of Monterey 435 Main Road P.O. Box 308 Monterey, MA 01245 Dear Ms. Noe: I have received the petition of Jonathan Sylbert 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 January 31, 2022, Mr. Sylbert requested “the minutes of the Select Board executive session of October 4, 2021, whether in draft or approved form.” The Town responded on February 15, 2022, stating that it was withholding responsive records. Unsatisfied with the Town’s response, Mr. Sylbert 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 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 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

Melisa Noe SPR22/0449 Page 2 March 4, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Sylbert states that “the October 4, 2021 Select Board executive session was entered under: ‘G.L. c. 30A, sec. 21(a)(1) – To hear complaints or charges brought against public officials.’” He contends that an individual “‘defeated the purpose of the executive session’ . . . and those portions pertaining to [the individual] are no longer entitled to the exemption afforded under G.L. c. 30A, sec. 21(a)(1).” The Town’s February 15th Response In its February 15, 2022 response, the states that “the minutes of the October 4th executive session have not been resolved and are part of an ongoing investigation and therefore are not available to the public in any form.” Open Meeting Law The Town’s response and Mr. Sylbert’s appeal raise issues potentially 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. Consequently, I encourage the parties to contact the AGO for a determination on the status of the executive session minutes. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jonathan Sylbert