Susan Delmolino v. Hadley, Town of - Town Clerk (SPR 20240542)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2024 SPR24/0542 Jessica Spanknebel Town Clerk Town of Hadley 100 Middle Street Hadley, MA 01035 Dear Ms. Spanknebel: I have received the petition of Susan Delmolino appealing the response of Town of Hadley (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 9, 2024, Ms. Delmolino requested the following “records from the February 9, 2024 Select Board Meeting, as listed on the agenda[:]” [1] Revised Public Comment Policy; [2] Charter Cable Renewal Contract; [3] Massachusetts Municipal Association – Updated Select Board Handbook; [4] The original bid proposals for the softball field from Omasta and Mountainview; [5] Personnel Contract Renewals and Compensatory Memorandum Approvals for the Chief of Police, Building Inspector, Police Lieutenants, and Dispatch Supervisor; [6] The Town Administrator’s report; and, [7] The contract for the Russell School work – the name of the company awarded the contract was garbled on YouTube and there was no detail in the TA report. In an email on February 9, 2024, the Town Clerk acknowledged the request, and informed Ms. Delmolino that her request was forwarded to the Select Board. On February 15, 2024 and February 16, 2024, the Town provided responses to Ms. Delmolino’s seven (7) requested items, including some records. Unsatisfied with the Town’s responses, Ms. Delmolino petitioned this office, and this appeal 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

Jessica Spanknebel SPR24/0542 Page 2 March 5, 2024 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. The Town’s February 15th and February 16th Responses On February 15, 2024, the Town provided Ms. Delmolino with a response, including some records. The response to each of the 7 requested items states: [1] Attached for your review. File name: Public Participation at meetings of public bodies policy; [2] The contract has not been approved and signed by the Select Board and cannot be released until approved; [3] Here is the link for the updated handbook: https://www.mma.org/members/msa/massachusetts-select-board/?chapter=42191 ; [4] Attached for your review. File name: Softball Field Bid Tabulation Form; [5] Attached for your review. File name(s): Mason, Michael Contract FY25- FY27[.] There were no further attachments for this agenda item; [6] Attached for your review. File name: Town Administrator Report 020724; and [7] Company name: AHF Boston. Contract attached for your review. File name: AHF Boston Contract. After receiving the February 15th response, Ms. Delmolino emailed the Town, stating, “#4. I asked for the *original* bid proposal documents for the ballfield, not the tabulation which was included here and on the agenda. #5. And regardless of their status as attachments, I requested Personnel Contract Renewals and Compensatory Memorandum Approvals for the Chief of Police, Building Inspector, Police Lieutenants, and Dispatch Supervisor. You included the Police Chief, so I still need the Building Inspector, Police Lieutenants, and Dispatch Supervisor as well.”

Jessica Spanknebel SPR24/0542 Page 3 March 5, 2024 The Town through Jennifer Sanders James, the Town’s Assistant Procurement Officer and Licensing Coordinator, provided a February 16, 2024 response to Ms. Delmolino’s February 15th email, stating, “I was responding directly to the request for the documents from the meeting agenda items … I provided documents that were part of the agenda. Town is not required to provide documents that do not [exist] or for contracts that are not completed.” The February 16th response from Ms. James to Ms. Delmolino further stated, “[t]he original bid documents do exist but [the] contract is not complete. I was referring to the fact that the LT and Dispatch memo [do not exist]. The vote was to allow HR to move forward with a memo to them. There are no documents for that specific item. I provided you the bid tabulation sheet which is what was provided to the Select Board and what has been traditionally provided in the past.” Based on the Town’s February 16th response, it remains unclear whether the bid documents for the ballfield are being withheld pursuant to an exemption in the Public Records Law, even though a contract has not been fully executed. In addition, it is unclear whether the Town is withholding the draft contract for renewal of Charter Cable pursuant to an exemption in the Public Records Law. Specifically, the Town must clarify these matters. See G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). 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). In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Open Meeting Law In her petition, Ms. Delmolino asserts, “[m]y takeway from the agenda and the video is that the Police LT and Dispatchers terms of employment/Compensatory Memoranda were voted favorably (approved) by the Select Board at that meeting, NOT that they were sent to Human Resources for development. Can a public body vote to approve documents that don’t exist?” Ms. Delmolino’s petition raises an issue concerning a procedural matter under 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 (AGO) 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 AGO for a determination on the status of the procedure(s) regarding voting at any open meeting or executive session. Conclusion Accordingly, the Town is ordered to provide Ms. Delmolino 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

Jessica Spanknebel SPR24/0542 Page 4 March 5, 2024 pre@sec.state.ma.us. Ms. Delmolino may appeal the substantive nature of the Town’s response within 90 calendar days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Susan Delmolino