Harold Rhodes v. Milford, Town of - Public Schools (SPR 20240054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0054 Kevin McIntyre, Ed.D. Superintendent Milford Public Schools 31 W. Fountain Street Milford, MA 01757 Dear Dr. McIntyre: I have received the petition of Harold S. Rhodes appealing the response of the Milford Public Schools (School) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 25, 2023, Mr. Rhodes requested copies of “[m]eeting minutes of the Executive Sessions of the School [Committee] for 2023.” On November 7, 2023, Dr. McIntyre provided a response, stating: …please be advised I am currently reviewing the [Executive Session] Minutes from 2023 that have not yet been released by the [Committee]. Once I have completed reviewing the [Executive Session] Minutes, I will submit them to the [Committee] with my recommendation as to which [Executive Session] Minutes should not be released with the exemptions noted for those [Executive Session] Minutes not being released. The [Committee] will then review the [Executive Session] Minutes and vote on which [Executive Session] Minutes to release. I expect this process to be completed by January 5, 2024. If this process is completed prior to January 5th, I will share that information with you via email… On January 3, 2024, Mr. Rhodes sent Dr. McIntyre an email stating, “…[p]lease let me take this opportunity to remind you that the minutes of the [E]xecutive [S]essions of the [Committee], per your note, are expected this Friday, January 5, 2024. The original request was made on October 25, 2023; the legally allowable time to produce such records is within ten business days from that date – November 8, 2023.” On January 4, 2024, Dr. McIntyre responded to Mr. Rhodes January 3rd email, indicating, “I have released all [E]xecutive [S]ession minutes that have been voted for release by the [Committee] to date. I will check with the [Committee] [C]hair and our counsel to review your 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

Kevin McIntyre, Ed.D. SPR24/0054 Page 2 January 19, 2024 request for any minutes that have not been released to date and get back to you early next week with a response…” On January 5, 2024, Mr. Rhodes emailed Dr. McIntyre again, stating, “…[t]o conform with this specific records request, could you please send me the [E]xecutive [S]ession minutes that have been released by email to me? For clarity, may I assume that, as of this date, not all [E]xecutive [S]ession minutes for 2023 have been released? If this is correct, could you please list the dates of the [Executive Session] meeting minutes that have not yet been released?” On January 8, 2024, Mr. Rhodes petitioned this office, and this appeal, SPR24/0054, 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. Attorney 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. 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 his petition, Mr. Rhodes states, “[a]s of today, January 8, 2024, not only has [Dr.] McIntyre violated the legally required 30-day response, but also has violated his stated release date, January 5, 2024 – now ten weeks passed the date of the [October 25, 2023] request…” In a January 9, 2024 letter via email, including responsive records to Mr. Rhodes, Dr. McIntyre wrote: “[a]s requested on October 25, 2023 and per my email response on November 7, 2023, [attached] please find the following [E]xecutive [S]ession [meeting] minutes for 2023: January 12, 2023[;] January 26, 2023[;] February 2, 2023[;] March 9, 2023 June 1, 2023; and, June 12, 2023. . .”

Kevin McIntyre, Ed.D. SPR24/0054 Page 3 January 19, 2024 In a January 10, 2024 email to this office, Mr. Rhodes asks this office to “[r]equest [Dr.] McIntyre to have all the remaining minutes of the executive sessions approved at the next (currently unscheduled on the Milford Town Calendar) for immediate posting and distribution.” In addition, Mr. Rhodes states, “[c]ould you please advise me as to what I should do? I find these minutes to be inadequate. Specifically, I believe that I have knowledge of other topics that were discussed during these [E]xecutive [S]essions that are not included in these minutes, particularly having to do with resolved financial, personnel, and other areas.” Open Meeting Law Given that this appeal is related to executive session minutes, this raises issues that potentially invoke the Open Meeting Law. Given that an interpretation of the Open Meeting Law falls within the authority of the Office of the Attorney General (AGO) and not this office, I decline to provide a determination at this time. See G. L. c. 30A, § 23. It is recommended that Mr. Rhodes contact the AGO should he seek a determination on this issue. Sincerely, Manza Arthur Supervisor of Records cc: Harold S. Rhodes