Christopher P. Loreti v. Arlington, Town of - Town Counsel (SPR 20231098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 8, 2023 SPR23/1098 Douglas W. Heim, Esq. Town Counsel Town of Arlington 50 Pleasant Street Arlington, MA 02476 Dear Attorney Heim: I have received the petition of Christopher Loreti appealing the response of the Town of Arlington (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 24, 2023, Mr. Loreti requested: [1] Resumes of the…3 Town Manager candidates who withdrew from consideration after being named finalists by the Preliminary Screening Committee[;] [2] Any and all correspondence from those 3 finalists provided to the Preliminary Screening Committee or any other town official explaining why they were withdrawing from consideration for the Town Manager position. Previous Appeal This request was the subject of a previous appeal. See SPR23/0668 Determination of the Supervisor of Records (April 19, 2023). In my April 19th determination, I closed the administrative appeal when I learned the Town provided a further response dated April 11, 2023 to Mr. Loreti. Unsatisfied with the Town’s response, Mr. Loreti petitioned this office and this appeal, SPR23/1098, 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 town 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

Douglas W. Heim, Esq. SPR23/1098 Page 2 June 8, 2023 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. 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 April 11th Response In its April 11, 2023 response, the Town states that it is withholding the requested records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). In its response, the Town asserts: First, the executive session minutes and documents of the Preliminary Screen committee in question have not yet been approved for release consistent with the discretion afforded to such committee under the Open Meeting Law. See e.g. G.L. c. 30A sec 22(f); OML 2021-70,) (outlining the right to withhold executive session minutes and materials from public disclosure for screening committees). In sum, both the Supervisor of Public Records and the courts have been clear on this point – that under c. 4 G. L. c. 4, § 7(26)(a) documents used in an executive session are exempt from disclosure so long as the executive session remains sealed…. Mr. Loreti may dispute the appropriateness of maintaining such confidentiality but his avenue for doing so is not an appeal to the Supervisor of Public Records. Mr. Loreti simultaneously filed an Open Meeting Law Complaint making similar allegations, but any appeal to the Supervisor of Public Records based upon the status of the executive session materials is at best premature, especially given that his appeal predated the approval of a contract for a new manager last night April 10, 2023. Open Meeting Law It appears Mr. Loreti’s appeal is related to the release of records used at the executive session, which would raise issues under the Open Meeting Law. See G. L. c. 30A, § 22(f). The authority to opine on Open Meeting Law matters, including executive session minute meetings, and documents pertaining to the executive session meetings, rests with the Open Government Division of the Office of the Attorney General (AGO). See G. L. c. 30A, § 23. Therefore, I decline to opine on the request pertaining to the executive session meetings. I advise the parties to consult with the AGO regarding the sessions and records pertaining to the sessions. I also

Douglas W. Heim, Esq. SPR23/1098 Page 3 June 8, 2023 decline to opine on the applicability of Exemption (c) of the Public Records Law to withhold the requested records at this time. Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Christopher Loreti