Steve Walther v. Andover, Town of - Town Clerk (SPR 20230735)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 28, 2023 SPR23/0735 Austin Simko Records Access Officer Town of Andover 36 Bartlett Street Andover, MA 01810 Dear Mr. Simko: I have received the petition of Steve Walther appealing the responses of the Town of Andover (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 21, 2023, Mr. Walther requested: [1] Andover Select Board Executive Session meeting minutes, specifically for all such minutes from January 1, 2018 to the present. I realize that the Town can withhold portions of the meeting minutes if the rationale for executive session still holds (such as an ongoing contract negotiation), but these minutes are supposed to be part of the public record after that, and it is in the public interest that they be made available (preferably on the Town website and clearly labeled as [Executive] Session minutes). [2] In the cases where the Town seeks to continue [to] withhold these records- I also request a reason for each case and if possible a date (or circumstance) for which they may become available. [3] What is the Town’s policy for the release of executive session minutes? I note a relevant aspect of the Public Records [L]aw as an addendum below. On March 6 and March 16, 2023, the Town responded. Unsatisfied with the Town’s responses, Mr. Walther petitioned this office and this appeal, SPR23/0735, was opened as a result. While this appeal was pending, the Town provided a further response to this office dated April 19, 2023. 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 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

Austin Simko SPR23/0735 Page 2 April 28, 2023 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(d)(iv) (written response must “identify 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. The Town’s March 6th and March 16th Responses In the Town’s March 6, 2023 response, the Town provided Mr. Walther with a fee estimate of $62.50 to produce the responsive records. In the Town’s March 16, 2023 response, the Town provided responsive records with redactions pursuant to Exemption (a), Exemption (c), and the attorney-client privilege. The Town also stated, “[p]er your third request, which is a request for information and not a public records request, the Town makes available upon request Executive Session minutes to the extent permitted under the Massachusetts Open Meeting Law.” Current Appeal In his appeal, Mr. Walther asserts: On 3/16 I received a single pdf file (heavily redacted) with all the requested meeting minutes aggregated. As of today (4/12) I still cannot find these meeting minutes released to the public. The Town website has meeting minutes for those dates which continue to exclude the executive session and contain only regular session minutes. In short, I have these minutes but the public does not. These records still have not been released to the public, let alone promptly. In the Town’s further response dated April 19, 2023, the Town states that “where the Town ultimately provided the documents to Mr. Walther free of charge, there is no ripe matter for your office to consider with respect to the Town’s response.” The Town also states: Mr. Walther characterizes certain meeting minutes as heavily redacted but does not otherwise contest the necessity and/or validity of the redactions. Accordingly,

Austin Simko SPR23/0735 Page 3 April 28, 2023 there is not matter for your office to consider with respect to this characterization. Even if there was, the Town’s March 16, 2023 response provided specific details as to each and every redaction made. In light of the Town’s supplemental response, the basis of Mr. Walther’s appeal is unclear. In compliance with the Public Records Law, the Supervisor of Records may only issue determinations where a violation of G. L. c. 66, § 10 has occurred. G. L. c. 66, § 10A(a). It is uncertain whether Mr. Walther is alleging a violation of G. L. c. 66, § 10. Conclusion Mr. Walther is reminded that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Mr. Walther may wish to clarify this matter and his objections to the Town’s responses. Sincerely, Manza Arthur Supervisor of Records cc: Steve Walther