Jacquelyn Wehtje v. Fitchburg, City of - Agricultural Commission (SPR 20232107)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2023 SPR23/2107 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 City of 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 Appeals The requested records were the subject of prior appeals. See SPR23/1563 Determination of the Supervisor of Records (Supervisor) (July 14, 2023) and SPR23/1896 Determination of the Supervisor (August 29, 2023). I closed SPR23/1563 after the City provided Ms. Wehtje with a response, including responsive records. In addition, I closed SPR23/1896, ordering the City to provide a response regarding the redactions to the email addresses in the records provided to Ms. Wehtje. In my August 29th determination, I also informed Ms. Wehtje that the Supervisor has no authority over the Open Meeting Law. Therefore, I declined to address the issue with the Open Meeting Law. Subsequently, the Commission provided a response on September 5, 2023. As a result of the Commission’s September 5th response, Ms. Wehtje petitioned the Supervisor, 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 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 SPR23/2107 Page 2 September 19, 2023 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 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. The Commission’s September 5th response The Commission’s September 5, 2023 response indicates that it is withholding the records under an Open Meeting Law exception. See G. L. c. 30A, § 22(f); see also G. L. c. 39, § 23B(6). The Commission asserts: [t]he emails withheld from the Commission’s response to Ms. Wehtje on July 10th excluded emails that included preparatory notes and materials, including site maps, regarding the properties being discussed during executive session. Our intention is to keep the property location and identity of owner confidential until such time that the City can secure the grant funding to pursue purchase of the property according to established City procedures. All other emails were provided. Also note that despite Ms. Wehtje’s conjectures, we have not released this information to any others members of the public. Current Appeal In her September 5th petition, Ms. Wehtje indicates in an email to a staff member of the Public Records Division, “[p]er your request please see below response from the [Commission] which I dispute. And yes, I formally appeal this…” Ms. Wehtje asserts, “[i]nasmuch as the site maps, seller name and seller address are already in the public domain, there is no reason to refuse to honor my public records request. I myself have sent this information to approximately 40 individuals interested in public affairs in Fitchburg.” Open Meeting Law Where the Commission states that it is withholding portions of the responsive records pursuant to ongoing executive session proceedings, the Commission’s response thus raises issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an

Jen Barlow SPR23/2107 Page 3 September 19, 2023 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. 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 withheld under the Open Meeting Law. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje