Michael Milanoski v. Hopedale, Town of (SPR 20221437)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 6, 2022 SPR22/1437 Lisa M. Pedroli Town Clerk Town of Hopedale 78 Hopedale Street, P.O. Box 7 Hopedale, MA 01747 Dear Ms. Pedroli: I have received the petition of Michael R. Milanoski, of Grafton and Upton Railroad Company, appealing the response of the Town of Hopedale (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 20, 2022, Mr. Milanoski requested “…a copy of all executive session minutes regarding West Street for the last 12 months…” Previous appeal This request was the subject of a previous appeal. See SPR22/1328 Determination of the Supervisor of Records (June 15, 2022). The Town responded on May 24, 2022. Unsatisfied with the response, Mr. Milanoski petitioned this office and this appeal, SPR22/1437, 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. 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 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

Lisa M. Pedroli SPR22/1437 Page 2 July 6, 2022 or redacted portion of the responsive record. The Town’s May 24th Response In its response, the Town advised, “… all such executive session minutes remain exempt from disclosure pursuant to the Open Meeting and Public Records Laws. While the Select Board did recently decide to withdraw the appeal of the Land Court matter, these cases are not concluded. With regard to the Superior Court litigation [Civil Action No. 2185CV00238], the plaintiffs in that case (‘Ten Taxpayers’) have appealed from the Court’s judgment on Counts 2 and 3 of the Complaint. The plaintiffs have not yet filed their Appeals Court brief, and I do not anticipate a decision from the Appeals Court before the end of 2022 at the earliest.” Current appeal In his appeal, Mr. Milanoski asserts, “… the Town filed a Motion to Voluntarily Withdraw its appeal. On May 2, 2022, the Land Court allowed the Town’s Motion to Voluntarily Withdraw its Appeal. Thus, as of May 2, 2022, the Town does not have an active litigation position in the Land Court case. While 10 taxpayers – who were never parties to the Land Court case – have filed an appeal of the Land Court’s denial of their separate motion to intervene, that appeal by a non-party does not implicate any Town litigation interest in that Land Court lawsuit.” Open Meeting Law Given that this appeal is related to documents received and used by the Town during an executive session, this raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination as to the content of the executive session matters at this time. See G. L. c. 30A, § 23. It is recommended that you contact the AGO should you seek determination on this issue. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael R. Milanoski Donald C. Keavany, Jr., Esq. Brian Riley, Esq.