Russ Williston v. Lancaster, Town of (SPR 20232549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2549 Kate Hodges Town Administrator Town of Lancaster 701 Main Street Lancaster, MA 01523 Dear Ms. Hodges: I have received the petition of Russ Williston appealing the response of the Town of Lancaster (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 23, 2023, Mr. Williston requested “‘Level Three grievance filed by the AFSCME Local 3720 Union regarding discipline’ related to the Executive Session held by the select board on 10/23.” On October 25, 2023, the Town responded and indicated that it was withholding responsive records pursuant to Exemption (c) of the Public Records Law and G. L. c. 30A, § 22(f). Unsatisfied with the Town’s response, Mr. Williston petitioned this office and this appeal, SPR23/2549, 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 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. Att’y 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. 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

Kate Hodges SPR23/2549 Page 2 November 8, 2023 Current Appeal In his appeal petition, Mr. Williston claimed that the Town did not meet its burden to withhold records in their entirety and that records sought are not related to executive session materials. The Town’s October 25th response In the Town’s October 25, 2023 response, it stated that records were withheld pursuant to Exemption (c) of the Public Records Law and G. L. c. 30A, § 22(f). The Town stated the following: Any records(s) responsive to this request are exempt from disclosure under exemption (c), specifically named individuals, as the disclosure of which may constitute an unwarranted invasion of personal privacy. Additionally, the Massachusetts Supreme Judicial Court determined that exempting, personnel information from disclosure serves to protect the government’s ability to function effectively as an employer. [Wakefiled [sic] Teacher’s Association v. School Committee of Wakefield, 431 Mass. 792, 802 (2000)] and while statutorily exempting personnel information the expansive definition of public records is not explicitly defined, judicial decisions acknowledge the term is not exact and therefore rely on record’ custodian’s case-specific determinations. [Worcester Telegram & Gazette Corporation v. Chief of Police of Worcester, 58 Mass App Ct 1, 5(2003)]. To determinate applicability, the RAO’s consider the nature or character of the documents as opposed to the document’s label. The document(s) which may be responsive to your request include personnel information and confidential witness statements which the appointing authority used to make an employment decision. Further, the circumstances surrounding the matter are legal in nature and are subject to an on ongoing process. Record(s) responsive to your request, therefore, are also exempt under M. G. L. c. 30A, § 22(f), which protects Executive Session materials. Since the grievance materials were used during the Select Board’s October 23, 2023, Executive Session, the publication of said materials from the Executive Session would negate the lawful purposes of the Select Board holding the Executive Session. Open Meeting Law The Town’s response raises issues related to the Open Meeting Law, rather than the Public Records Law. See G. L. c. 30A, § 22(f). 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 issue 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 materials. Accordingly, I will now consider this administrative appeal closed.

Kate Hodges SPR23/2549 Page 3 November 8, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Russ Williston