Jacquelyn Wehtje v. Fitchburg, City of (SPR 20240663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0663 Joanna Bilotta City Clerk/Records Access Officer City of Fitchburg 718 Main Street Fitchburg, MA 01420 Dear Ms. Bilotta: I have received the petition of Jacquelyn Wehtje appealing the response of the City of Fitchburg (City) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On February 16, 2024, Ms. Wehtje requested, “…all executive session minutes from the Agricultural Commission from calendar year 2023.” The City provided responses on February 16, 2024 and March 2, 2024. Unsatisfied with the City’s responses, Ms. Wehtje petitioned this office and this appeal, SPR24/0663, 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. See 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

Joanna Bilotta SPR24/0663 Page 2 March 14, 2024 If there are any fees associated with a response a written, good faith estimate must be provided. See 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 City’s February 16th and March 2nd responses In its February 16, 2024 response, the City stated, “…executive session minutes are never posted online due to the potential sensitivity of those matters…they are public record however and can be picked up at the clerk’s office upon request.” In its March 2, 2024 response, the City stated: [1.] 5/4/23 and 6/6/23 Executive Session Minutes will be on our meeting agenda for approval for public release. [2.] 8/1/23 Executive Session Minutes have yet to be reviewed by the Commission. They will be reviewed and be considered for a vote to be released. [3.] 4/4/23 Executive Session Minutes will be voted on to retain the confidentiality of an ongoing issue. Current Appeal In her appeal, Ms. Wehtje states, “…the City of Fitchburg is refusing to release minutes within 10 business days. The executive sessions covered a matter already presented to City Council in public session in 2023 (purchase of Dawson Estate).” Open Meeting Law The City’s responses and Ms. Wehtje’s appeal raise 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 those issues in this determination. See G. L. c. 30A, § 23. If unresolved issues remain, I encourage the parties to contact the Office of the Attorney General for a determination on the status of the executive session minutes and other documents in question. Conclusion Accordingly, I will now consider this administrative appeal closed. Ms. Wehtje is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10(A)(c).

Joanna Bilotta SPR24/0663 Page 3 March 14, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Jacquelyn Wehtje