Joan Kinniburgh v. Wareham, Town of - Town Clerk (SPR 20221022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 5, 2022 SPR22/1022 Michele Bissonnette Town Clerk Wareham Town Hall 54 Marion Road Wareham, MA 02571 Dear Ms. Bissonnette: I have received the petition of Joan Kinniburgh appealing the response of the Town of Wareham (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 11, 2022, Ms. Kinniburgh requested a copy of the following records: [1] Board of Selectmen members and Town Administrator: All emails regarding Little Harbor Country Club (LHCC) to and between all parties from August 1, 2021 to April 11, 2022 [2] The executed Purchase and Sale Agreement for Little Harbor Country Club (LHCC). [3] Board of Selectmen Executive Session minutes regarding Little Harbor Country Club (LHCC) from August 1, 2021 to April 11, 2022. Prior Appeal The requested records were the subject of a prior determination. See SPR22/0997 Determination of the Supervisor of Records (May 2, 2022). In my May 2, 2022 determination, I learned that the Town provided a supplemental response. Ms. Kinniburgh appealed this response and SPR22/1022 was opened to address Ms. Kinniburgh’s concerns. This appeal pertains to Request Items 2 and 3 only. 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 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

Michele Bissonnette SPR22/1022 Page 2 May 5, 2022 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. 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 April 28th Response On April 28, 2022, the Town provided a supplemental response in which it stated that “[t]he two items Ms. Kinniburgh requested and did not receive are because 1. [t]he Purchase and Sale Agreement she requested has not been executed [and] 2. [t]he Executive Session meeting minutes were not provided as the transaction they are relative to has not been completed.” Current Appeal In her appeal, Ms. Kinniburgh states that she is appealing the Town’s response, for failure to supply the executed Purchase and Sale Agreement for the purchase of Little Harbor Country Club by the [Town] and the Board of Selectmen’s Executive Session minutes for which the information was disclosed at Special Town Meeting on February 22nd in order to conduct a fully informed [t]axpayer vote to purchase. Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper ----------------- Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein ------------ v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature).

Michele Bissonnette SPR22/1022 Page 3 May 5, 2022 Item 2 Based on the above, it is unclear what exemption or legal basis under the Public Records Law the Town is claiming applies to withhold the Purchase and Sale Agreement from disclosure. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, §10(a)(ii). As such, I find the Town has not met its burden to withhold this record from disclosure. Item 3 Open Meeting Law The Town’s response and Ms. Kinniburgh’s appeal regarding the executive session meeting minutes raise an issue related to the Open Meeting Law, rather the Public Records 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 this issue in this determination. See G. L. c. 30A, § 23. If an unresolved issue remains, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes in question. Conclusion Accordingly, the Town is ordered to provide Ms. Kinniburgh with a response to Item 2 of the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Ms. Kinniburgh may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Joan Kinniburgh