Ryan Bagwell v. Melrose, City of (SPR 20231732)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2023 SPR23/1732 Amy Lindquist, Esq. Assistant City Solicitor for School and Labor City of Melrose 360 Lynn Fells Parkway Melrose, MA 02176 Dear Attorney Lindquist: I have received the petition of Ryan Bagwell appealing the response of the City of Melrose (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, Mr. Bagwell requested the following records: [1.] [A]ll executive session minutes of school committee meetings held between August 1, 2022 and today; [2.] [A]ll offers made to the Melrose Education Association (MEA) as part of the collective bargaining process for Unit A personnel between August 1, 2022 and today, and; [3.] [A]ll counter-offers sent to the school committee from the MEA for Unit A personnel between August 1, 2022 and today as part of the collective bargaining process. Prior Appeals This request was the subject of previous appeals. See SPR23/0417 Determination of the Supervisor of Records (March 16, 2023); SPR23/0706 Determination of the Supervisor of Records (May 1, 2023) and SPR23/1089 Determinations of the Supervisor of Records (June 7, 2023 and July 14, 2023). The City responded on July 27, 2023. Unsatisfied with the City’s response, Mr. Bagwell petitioned this office and this appeal, SPR23/1732, 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 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

Amy Lindquist, Esq. SPR23/1732 Page 2 August 11, 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(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. The City’s July 27th Response In its July 27, 2023 response, the City identified responsive documents and cited Exemptions (a) and (b) of the Public Records Law to withhold the responsive records regarding Items 2 and 3 in their entirety. 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.

Amy Lindquist, Esq. SPR23/1732 Page 3 August 11, 2023 In its response, the City cited G. L. c. 150E and specifically, G. L. c. 150E § 1, to withhold the requested records. The City stated: G.L. c. 150E, § 1, the City of Melrose School Committee is the employer of teachers for the purposes of collective bargaining. Ground rules are usually one of the first items that the parties negotiate when the collective bargaining process begins. As part of the good faith negotiation process with the MEA, the School Committee and MEA entered into a ground Rules Agreement (see attached document). As part of this agreement, documents shared and generated were agreed to be held confidentially by members of the negotiation teams, unless otherwise agreed to. Producing these documents in response to a public records request in direct violation of the ground rules entered into in good faith by the parties to this agreement, would result in a legal claim by the MEA that the School Committee repudiated the agreed upon ground rules for successor negotiations. The Commonwealth Employee Relations Board has held that ‘where an employer violates the parties’ agreed-upon ground rules for contract negotiations this conduct’ constitutes a refusal to bargain in good faith in violation of Section 10(a)(5) of M.G.L. c. 150E. 2 Given this, M.G.L. c. 150E by necessary implication, necessitates the withholding of This documentation since as such documents shared and generated during negotiations were agreed to be held confidentially unless otherwise agreed to by the parties. M.G.L. c. 150E requires good faith negotiations between the parties which includes abiding by agreed-upon ground rules entered into during good faith negotiations and not violating the ground rules at issue. G. L. 150E, § 10 provides in pertinent part as follow: It shall be a prohibited practice for a public employer or its designated representative to (1) Interfere, restrain, or coerce any employee in the exercise of any right guaranteed under this chapter ... (5) Refuse to bargain collectively in good faith with the exclusive representative as required in section six. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding

Amy Lindquist, Esq. SPR23/1732 Page 4 August 11, 2023 G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). In its response, the City previously advised, “[t]he requested records represent the proposals and counterproposals between the parties, and each of these documents responsive to these requests relate to internal personnel practices of the parties. The iterations of the language proposals that were sent back and forth between the parties contain the specific positions of the School Committee on the internal practices of the school department. For example, many of the proposals were in regards to things like class size, teaching hours, work load, and grievance procedures relating to the labor relationship between the parties. Releasing this back and forth exchange of proposals and information, which were done with the understanding said documentation would remain confidential unless otherwise agreed to, would be detrimental to the labor relationship of these two parties and any future negotiations with other employees and Unions within the City.” In its July 27th response, the City stated, “[p]rior responses (stated in the City’s Supplemental Response dated May 17, 2023) have established that the requested documents related solely to the internal personnel rules and practices of the government unit. Therefore, the City has met the burden of the first part of the Exemption B analysis. Upon review of the un-redacted records and based upon the City’s response, it is unclear as to how all the requested records are restricted under G. L. c. 150E, as it operates through Exemption (a). With regard to Exemption (b), the City states that it withheld the responsive records because, “[t]he requested records represent the proposals and counterproposals between the parties, and each of these documents responsive to these requests relate to internal personnel practices of the parties. . . .” However, the City did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the City’s necessary government function.” The City must clarify this matter. Accordingly, I find the City did not meet its burden of specificity in withholding the responsive records, in their entirety, under Exemptions (a) and (b) of the Public Records Law. Conclusion Accordingly, the City is ordered to review the records, redact where necessary and

Amy Lindquist, Esq. SPR23/1732 Page 5 August 11, 2023 provide the responsive records to Mr. Bagwell in a manner consistent this order, the Public Records Law, its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Ryan Bagwell