Kathy Curran v. Holbrook, Town of - Town Clerk (SPR 20231308)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 29, 2023 SPR23/1308 Jeanmarie Tarara Town Clerk Town of Holbrook 50 N Franklin Street Holbrook, MA 02343 Dear Ms. Tarara: I have received the petition of Kathy Curran, of NBC10 Boston, appealing the response of the Town of Holbrook (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 25, 2023, Ms. Curran requested the following records: [1.] All records including contracts and or any agreements made with any outside entity hired by the town of Holbrook related to the town’s investigation into [an identified Holbrook Superintendent]. [2.] All reports submitted by such entity and any invoices, bills, and records reflecting money paid to any outside entity by the Town of Holbrook related to the investigation into [an identified Holbrook Superintendent’s] work hours. The Town responded on June 8, 2023. Unsatisfied with the response, Ms. Curran petitioned this office and this appeal, SPR23/1308, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Jeanmarie Tarara SPR23/1308 Page 2 June 29, 2023 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 June 8th Response In its June 8, 2023 response, the Town responded as follows: Request Number 1 ... [the] request for all records related to the ongoing investigation, including contracts or any agreements made with an outside entity hired by the Town, portions of the contents of such records are exempt from production pursuant to the Open Meeting Law. G. L. c. 4, § 7(26)(a) exempting records that are ‘specifically or by necessary implication exempted from disclosure under the statute’) ... Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the Town further asserted that the statute “G. L. c. 30A, § 21(a)(3) (permitting a public body to meet in executive session ‘[t]o discuss the reputation, character, physical condition or mental health, rather than professional competence of an individual, or to

Jeanmarie Tarara SPR23/1308 Page 3 June 29, 2023 discuss the discipline or dismissal of, or complaints or charges brought against, a public officer, employee, staff member or individual’); G. L. c. 30A, § 22(f) (‘The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety ... as long as publication may defeat the lawful purposes of the executive session ...’).” G. L. c. 30A, § 22 provides in pertinent part as follows: if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure. G. L. c. 30A, § 22. In its response, the Town further stated, “[t]he investigation remains ongoing and, therefore, the purpose for which the executive session was held still exists.” The Town further stated, “[t]he portions of those records are also exempt from production pursuant to exemption (c) of the Public Records Law as they constitute personnel information relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. G. L. c. 4, § 7(26)(c).” The Town produced a redacted Signed Contract to Conduct an Investigation. Open Meeting Law The nature of Ms. Curran’s request and the response that was provided to her raise issues that invoke the Open Meeting Law. An interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office. Consequently, I decline to opine on this matter at this time. See G. L. c. 30A, § 23. It is recommended that the parties contact the Attorney General’s Office if they seek a determination on this issue. Request Number 2 In its response, the Town advised, “[w]ith respect to your requests for all reports submitted by an outside entity hired by the Town and any invoices, bills, and records reflecting money paid to the outside entity by the Town, the Town is not in possession of any records responsive to those requests.”

Jeanmarie Tarara SPR23/1308 Page 4 June 29, 2023 No Duty to Create Records Under the Public Records Law, the Town is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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). Where the Town has confirmed that it does not possess records, and has no duty to create records responsive to the request, I consider this portion of the request resolved. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Kathy Curran