Patrick Higgins v. Somerset, Town of (SPR 20222094)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 26, 2022 SPR22/2094 Paula Ramos Assistant to Town Administrator Town of Somerset 140 Wood Street Somerset, MA 02726 Dear Ms. Ramos: I have received the petition of Patrick Higgins appealing the response of the Town of Somerset (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2022, Mr. Higgins requested “all executive session minutes for executive sessions held by the Board of Selectmen in 2022 through August 23, 2022.” The Town responded on September 13, 2022, providing some responsive records, and withholding others. Unsatisfied with the Town’s response, Mr. Higgins 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

Paula Ramos SPR22/2094 Page 2 September 26, 2022 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Higgins contends that “the selectman has not provided a list of dates that are being withheld nor the exemption that are relying on to withhold the ‘remaining minutes for 2022.’” The Town’s September 13th Response In its September 13, 2022 response, the Town states that “the Board [of Selectmen] at their September 7, 2022, meeting voted to release the attached executive session minutes with the remaining minutes for 2022, withheld because release would defeat the purpose for having executive session.” The Town also includes a link to the website for the Board of Selectmen, which in turn includes links to meeting minutes and agendas, which in turn identify the parts of each meeting held in executive session. Open Meeting Law The Town’s response, along with Mr. Higgins’ appeal petition, raises 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. 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. If Mr. Higgins 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, Manza Arthur Supervisor of Records cc: Patrick Higgins