Leigh Blander v. Marblehead, Town of - Public Schools (SPR 20240267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 12, 2024 SPR24/0267 Michelle Cresta Records Access Officer Marblehead Public Schools Administration Building 9 Widger Road Marblehead, MA 01945 Dear Ms. Cresta: I have received the petition of Leigh Blander, of Marblehead News, appealing the response of the Marblehead 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 January 2, 2024, Ms. Blander requested, “... the minutes from two executive sessions on Dec. 7 and 21 [and] [identified individuals’] contracts and their separation agreements... and all legal bills related to the Student Services situation in December and if the district or School Committee signed an agreement with [an identified individual] ... forward that along with the hourly rate.” The School responded on January 23, 2024. Unsatisfied with the response, Ms. Blander petitioned this office and this appeal, SPR24/0267, 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. 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

Lisa Dimier, SPR24/0267 Page 2 February 12, 2024 The School’s January 23rd Response In its January 23, 2024 response, the School cited Exemption (a) of the Public Records Law to withhold the executive sessions minutes in their entirety. Current appeal In her appeal, Ms. Blander’s request is to review the executive session minutes. Ms. Blander stated that “... local taxpayers deserve to know the contents of the ES minutes, given that [identified individuals] no longer work for the district and their employment status is resolved, and that the School Committee awarded them $120,000 in taxpayer dollars without explaining why.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the School cited G. L. c. 30A, § 22 which provides in pertinent part as follows: if an executive session is held pursuant to clause (2) or (3) of subsections (a) of section 21, then the minutes, preparatory materials and documents and exhibits used at the session may be withheld from disclosure to the public in their entirety, unless and until such time as a litigating, negotiating or bargaining position is no

Lisa Dimier, SPR24/0267 Page 3 February 12, 2024 longer jeopardized by such disclosure, at which time they shall be disclosed unless the attorney-client privilege or 1 or more of the exemptions under said clause Twenty-sixth of said section 7 of said chapter 4 apply to withhold these records, or any portion thereof, from disclosure. G. L. c. 30A, § 22. In its response, the School stated, “[a]s of the date of this response, the Committee has reviewed the requested executive session minutes and determined they will not be released at this time. Therefore, those minutes are exempt in their entirety from the definition of public records pursuant to M.G.L. c. 4, §7(26)(a) (‘Exemption (a)’).” Open Meeting Law The nature of Ms. Blander’s request and the response that was provided to her 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 this matter 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 issue. Sincerely, Manza Arthur Supervisor of Records cc: Leigh Blander