Paul DeMeo v. Gardner, City of - City Clerk (SPR 20230531)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2023 SPR23/0531 Titi Siriphan City Clerk City of Gardner 95 Pleasant Street, Room 121 Gardner, MA 01440 Dear Ms. Siriphan: I have received the petition of Paul DeMeo appealing the response of the City of Gardner (City) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 3, 2023, Mr. DeMeo requested, among other items, “all minutes of ‘Executive Sessions of the City Council’ for the past five years and the dates thereof.” The City responded on March 20, 2023. Unsatisfied with the City’s response, Mr. DeMeo 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. The City’s March 20th Response In its March 20, 2023 response, the City states that “executive session minutes of the City 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

Titi Siriphan SPR23/0531 Page 2 March 31, 2023 Council for the past five years do exist but have not been released.” The City also provides the following information: Dates of executive session held for the past five years:  August 2, 2021  April 19, 2022 In his appeal petition, Mr. DeMeo contends that the City “failed to include any minutes of any executive session and ... there are other dates she did not include.” Records in Existence Please be advised that 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). Additionally, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In a telephone conversation with this office on March 30, 2023, the City confirmed that the two dates listed above are the only executive sessions held by the City Council for the past five years. The City further confirmed that the reasons for executive session remain ongoing. Where the City has confirmed that it identified all responsive records in its custody, I find that this portion of Mr. DeMeo’s appeal is resolved. Opening Meeting Law Mr. DeMeo also raises issues in his appeal 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 Office of the Attorney General and not this office, I decline to address those issues in this determination. See G. L. c. 30A, § 23. It is recommended that Mr. DeMeo contact the AGO should he seek a determination on this matter. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Paul DeMeo