Michael J. Rausch v. Bourne, Town of (SPR 20231578)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1578 Barry H. Johnson Town Clerk Town of Bourne 24 Perry Avenue Buzzards Bay, MA 02532 Dear Mr. Johnson: I have received the petition of Michael J. Rausch, of the Bourne Enterprise, appealing the response of the Town of Bourne (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 24, 2023, Mr. Rausch requested the following: Any and all documents relative to the Bourne Select Board’s handling of a personnel matter involving Bourne Town Administrator ... including letters of complaint against [her], and meeting minutes of executive sessions during which the complaint was discussed. The Town responded on June 5, 2023, citing Exemption (c) of the Public Records Law, the attorney-client privilege, and the Open Meeting Law for denying the request. See G. L. c. 4, § 7(26)(c), c. 30A, § 21. Unsatisfied with the Town’s response, Mr. Rausch appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Town provided a supplemental response to this office and Mr. Rausch on July 18, 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 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. 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

Barry H. Johnson SPR23/1578 Page 2 July 24, 2023 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 Town’s July 18th Response In its July 18, 2023 response, the Town states the following: During the tenure of the current Town Administrator, to whom the request relates, the Select Board has posted agenda items to discuss such a complaint, but those agenda items have not identified the “public officer, employee, staff member, or individual” to be discussed. The Town and its Select Board are not free to divulge that identity where the discussion and deliberation during those meetings remains confidential. In particular, the Town and its Select Board will neither confirm nor deny that one or more of those posted executive sessions related to the current Town Administrator. The request, however, seeks to discover whether the Town Administrator was discussed at one of those executive sessions by seeking any records related to the Select Board’s discussion of the same. Accordingly, the Town’s response was drafted to avoid disclosing whether the Town possesses such records because, even acknowledging but withholding those records would reveal information protected by the Open Meeting Law. Under similar reasoning, if such records existed, the Town could not engage in a detailed exemption c analysis (the so- called “PETA” factors) or prepare an attorney-client privilege log or engage in any more specific analysis of any kind without disclosing the topic of an executive session agenda item. Thus, the Town in its response, could only point to the possibility that exemption c and/or attorney-client privilege could apply to such records if they exist. . . . [T]he Town simply cannot respond with any more specificity without disclosing information that is confidential under the Open Meeting Law and State Ethics Law. Open Meeting Law The Town’s response, along with Mr. Rausch’s original request and appeal petition, raise issues 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 Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a determination on the status of these issues.

Barry H. Johnson SPR23/1578 Page 3 July 24, 2023 Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Michael J. Rausch Bryan Bertram, Esq.