Margaret Sheehan v. Plymouth, Town of (SPR 20222810)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2022 SPR22/2810 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth MA, 02360 Dear Mr. Anderson: I have received the petition of Meg Sheehan appealing the response of the Town of Plymouth (Town) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 18, 2022, Ms. Sheehan requested: [1] All communications among and between members of the Plymouth Board of Selectmen, [named individual], the Water Town and Planning Town and representatives of Claremont Development LLC their agents, representatives and attorneys. [2] All records, communications and information relating to the discussions referred to by Selectboard member [named individual] at the Nov. 16, 2022 Zoning Board of Appeals hearing on Claremont Development LLC regarding the Selectboard discussions with Claremont Development LLC and the Water Town. [3] All draft agendas, records and draft and final minutes of the November 15, 2022 Executive Session of the Selectboard regarding the Colony Place agenda item. The Town responded on December 2, 2022. Unsatisfied with the response, Ms. Sheehan petitioned this office, and this appeal, SPR22/2810, 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, § l0A(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). 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

Connor Anderson SPR22/2810 Page 2 December 19, 2022 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. The Town’s December 2nd Response In its December 2, 2022 response, the Town stated, “… the posting of the executive session for purposes of the public body to convene in said session was done under G.L. c. 30A, §21 (a)(6)… executive session minutes remain secret ‘as long as publication may defeat the lawful purposes of the executive session, but no longer.’ See G.L. c. 30A §22(f)… we are unable to process your public records request at this time as the minutes and any related documents are protected from disclosure.” Current appeal In her appeal, Ms. Sheehan states, “the Selectboad [sic] did not have grounds under Purpose 6 of the Open Meeting Law ro [sic] go into executive session on 11/14/2022. It cannot withhold records for an executive session that was unlawful.” Open Meeting Law The Town’s response and Ms. Sheehan’s appeal raise issues related to the Open Meeting Law, rather than 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 those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes and the related documents in question. Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Meg Sheehan