Jacquelyn Wehtje v. Fitchburg, City of - Agricultural Commission (SPR 20231896)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2023 SPR23/1896 Jen Barlow City of Fitchburg Agricultural Commission 718 Main Street Fitchburg, MA 01420 Dear Ms. Barlow: I have received the petition of Jacquelyn Wehtje appealing the response of the Fitchburg Agricultural Commission (Commission) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 13, 2023, Ms. Wehtje requested “…all emails to and from the fitchburgagcomm@gmail.com address.” Prior Appeal The June 13, 2023 request was the subject of a prior appeal. See SPR23/1563 Determination of the Supervisor of Records (July 14, 2023). In my July 14th determination, I closed the appeal after the Commission provided Ms. Wehtje with a response, including responsive records on July 10, 2023. As a result of the Commission’s response, Ms. Wehtje petitioned this office and the current appeal was opened. 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) (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 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

Jen Barlow SPR23/1896 Page 2 August 29, 2023 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. Current Appeal In her petition, Ms. Wehtje states “…I do wish to appeal the substantive nature of the Commission’s July 10th response because they have redacted information which they have provided to another member of the public.” Burden of Specificity in Redacting Records On July 10, 2023, the Commission provided Ms. Wehtje with email records that had redactions to the email addresses without specifically claiming any exemption(s) in the Public Records Law that would support the withholding of the redacted information within the email records. Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Commission did not meet its burden of demonstrating how the redacted information, from the email records, is exempt from disclosure. The Commission must claim an exemption under the Public Records Law and explain with specificity how the exemption permits it to redact the information from the requested records. Open Meeting Law – Executive Session The Commission’s July 10th response informed Ms. Wehtje that it is providing her with a PDF of the emails requested, excluding documents pertaining to executive session business. In an August 14th email to this office, Ms. Wehtje asserted, “[the Commission] excluded from the response materials they allege are covered by executive session but have provided the same or substantially similar information to another Fitchburg [identified resident]…” Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General and not this office, I decline to address this matter in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes and other documents in question. Conclusion Accordingly, the Commission is ordered to provide Ms. Wehtje with a response to her request, in a manner consistent with this order, the Public Records Law, and its Regulations

Jen Barlow SPR23/1896 Page 3 August 29, 2023 within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje