Margaret E. Sheehan, Esq. v. Plymouth, Town of (SPR 20232238)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2023 SPR23/2238 Connor Anderson Records Access Officer Town of Plymouth 26 Court Street Plymouth, MA 02360 Dear Mr. Anderson: I have received the petition of Margaret E. Sheehan, Esq., of the Community Land & Water Coalition, appealing the response of the Town of Plymouth (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 23, 2023, Attorney Sheehan requested the following records pertaining to an agreement between the Town and American Cruise Lines, Inc.: [1] All records relating or referring to the 30 Town Wharf Lease, including but not limited to final minutes of the Selectboard Executive Session of October 18, 2022, and all other executive sessions discussing this topic, including emails, phone notes and communications among and between Selectboard members and any town employees and the lessee, the final lease and all drafts and revisions to the lease. [2] The minutes of the executive session of the Selectboard meeting of Tuesday October 18, 2022. [3] All records relating or referring to the “American Cruise Line Agreement” identified on the Selectboard agenda including emails, phone notes and all communications regarding the agreement, and the draft and final agreement and minutes of the Selectboard relating to the agreement. Prior Appeal This request was the subject of a previous appeal. See SPR23/2190 Determination of the Supervisor of Records (September 20, 2023). In my September 20th determination, it was my understanding that the Town provided a subsequent response and closed the appeal. The Town provided a response on September 14, 2023. Unsatisfied with the Town’s response, Ms. Sheehan petitioned this office and this appeal, SPR23/2238, was opened as a result. 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

Connor Anderson SPR23/2238 Page 2 October 4, 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(d)(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 Town’s Responses In its January 31, 2023 response, the Town provided a draft of the October 18, 2022 minutes and stated, “[the Town is] withholding the material from the Select Board’s Executive Session from October 18, 2022 concerning the 30 Town Wharf Lease since the matter has not been resolved at this time in compliance with the Open Meeting Law…” In its September 14, 2023 response, the Town produced various records and stated, “[n]owhere in the original request is there a mention of checks and/or payments. All Select Board Meeting Minutes that have been approved are available on the Town’s webpage… The two pieces of correspondence we have related to this request were provided. The October 18, 2022 Executive Session Minutes were partially redacted because the lease concerning a restaurant at 30 Town Wharf is still an ongoing issue. The agreement was not signed by either party at the time this request was responded to.” Current appeal In her appeal, Attorney Sheehan stated, “[t]he Town produced no minutes of the numerous executive sessions where this topic was discussed… There is no basis for redacting the October 18, 2022 document… There are no emails, phone notes or other correspondence…The request covers checks and payments…”

Connor Anderson SPR23/2238 Page 3 October 4, 2023 In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dep’t of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” Id. Based on the Town’s response, it appears links to all approved board meeting minutes were provided to Attorney Sheehan. If Attorney Sheehan seeks any other documents in addition to the records reflected in the January 23rd request, she may make a new request to the Town. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Open Meeting Law – Executive Session Minutes The nature of Attorney Sheehan’s request and the response that was provided by the Town 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 the matter regarding the executive session minutes 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 matter. Additional records In light of the claims made by Attorney Sheehan in her petition, it is unclear whether the Town possesses additional records that may be responsive to the request. Particularly, the Town must clarify if it possesses “. . . emails, phone notes or other correspondence.” 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). To the extent that additional records exist, I find the Town must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Town is ordered to provide Attorney Sheehan with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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 this response to this office at pre@sec.state.ma.us.

Connor Anderson SPR23/2238 Page 4 October 4, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Margaret E. Sheehan, Esq.