Patrick Higgins v. Swansea, Town of - Town Clerk (SPR 20222112)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 23, 2022 SPR22/2112 Diane Pelland Town Clerk Town of Swansea 81 Main Street Swansea, MA 02777 Dear Ms. Pelland: I have received the petition of Patrick Higgins appealing the response of the Town of Swansea (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 23, 2022, Mr. Higgins requested “…a pdf file copy of all [E]xecutive [S]ession minutes for calendar year 2022 for [E]xecutive [S]essions held by the [Town’s] Board of Selectmen.” On September 2, 2022, the Town provided Mr. Higgins with the following Executive Session Minutes in their entirety: 02/08/22; 03/08/22; 03/29/22; 05/10/22; 06/28/22 and 08/09/22. The Town also withheld, in their entirety, the following Executive Session Minutes under the Open Meeting Law exceptions: 01/11/22; 01/25/22; 2/15/22; 03/22/22; 04/12/22; 04/26/22 and 07/12/22. As a result of the Town withholding portions of the Executive Session Minutes, Mr. Higgins petitioned the Supervisor of Records, and this appeal was opened. 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) (written response must “identify 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

Diane Pelland SPR22/2112 Page 2 September 23, 2022 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…”); 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). 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. Open Meeting Law Mr. Higgins’ request for Executive Session minutes, and the Town’s September 2, 2022 response indicating it is withholding the minutes, 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 the issues in this determination. See G. L. c. 30A, § 23. It is recommended that Mr. Higgins contact the AGO should he seek a determination on this matter. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Patrick Higgins