Elizabeth Toth v. Templeton, Town of - Town Administrator (SPR 20232339)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2339 Adam D. Lamontagne, MPA, MCPPO Town Administrator Town of Templeton Town Hall, Room 6 P. O. Box 620 160 Patriots Road East Templeton, MA 01438 Dear Mr. Lamontagne: I have received the petition of Elizabeth Toth, appealing the response of the Town of Templeton (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 13, 2023, Ms. Toth requested “…a copy of Select Board Member . . . meeting notes, specifically the items she shared with you during the September 13, 2023 Select Board Meeting.” On September 21, 2023, the Town responded and indicated that it was withholding responsive records pursuant to Exemption (e) of the Public Records Law. G. L. c. 4, § 7(26)(e). Unsatisfied with the Town’s response, Ms. Toth petitioned this office and this appeal, SPR23/2339, 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 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 town 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). 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

Adam D. Lamontagne SPR23/2339 Page 2 October 17, 2023 The Town’s September 21st response In the Town’s September 21, 2023 response, it stated “[y]ou were requesting Select Board Member . . . notes. I will be utilizing Exemption (e)-MGL c. 4, § 7(26) (e).” Current Appeal In her current appeal, Ms. Toth claimed that the Town did not meet its burden to withhold responsive records pursuant to Exemption (e) of the Public Records Law because the notes were part of a government file and the notes were shared in the meeting. In a further response on October 2, 2023, the Town claimed: [1] The Town has not asked Select Board members to submit their personal notes they take at meetings to be maintained as part of the files of a governmental unit; . . . [2] You give the impression that [an identified individual] is sitting there taking notes at the meetings for the final minutes; however, the Select Board have a recording clerk . . . and she works in the TA office. . . . [3] Your contention is that it does appear that I acknowledged. . . . I watched the video and any person that watches it could see the distance away I was from [an identified individual] . . . Exemption (e) Exemption (e) permits the withholding of: notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. c. 4, § 7(26)(e). The exemption may not be applied by custodians of records to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. The first criterion of Exemption (e) limits its application to work-related records that can be characterized as “personal” to the employee, such as personal reflections on work-related activities and notes created by an employee to assist him/her in preparing reports for other employees or for the files of the governmental entity. Notes that have been shared by the employee may not be considered to be “personal” pursuant to Exemption (e).

Adam D. Lamontagne SPR23/2339 Page 3 October 17, 2023 The second criterion of Exemption (e) requires that the notes not be kept in a government file. Under the exemption, “files of the governmental unit” excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption (e) and the records custodian may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Based on Ms. Toth’s claim, I find the Town must confirm if the notes were shared by the employee. Conclusion Accordingly, the Town is ordered to provide Ms. Toth 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 the response to this office at pre@sec.state.ma.us. Ms. Toth may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Elizabeth Toth