Peter Ebb v. Malden, City of - School Commitee (SPR 20242220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2024 SPR24/2220 Timothy Sippel Superintendent Malden Public Schools 215 Pleasant Street Malden, MA 02148 Dear Superintendent Sippel: I have received the petition of Peter Ebb appealing the response of the Malden School Committee (Committee) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 17, 2024, Mr. Ebb requested: [1.] all proposals made by either the Malden School Committee (the “School Committee”) or the Malden Education Association (the “Union”), during the collective bargaining negotiations (the “Negotiations”) which led up to the tentative agreements reached by the School Committee and the Union on or about October 17, 2022 (the “Tentative Agreements”); [2.] any ground rules agreed to by the School Committee and the Union in connection with the Negotiations; [3.] the Tentative Agreements; and [4.] any memoranda of agreement reflecting or based on the Tentative Agreements. On July 22, 2024, the Committee provided a response, denying access to the responsive records. Unsatisfied with the response, Mr. Ebb petitioned this office and this appeal, SPR24/2220, 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 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

Superintendent Timothy Sippel SPR24/2220 Page 2 August 19, 2024 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. 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 Committee’s July 22nd Response In its July 22, 2024 response, the Committee cited the Open Meeting Law to withhold records and stated the following: [Mr. Ebb’s] request seeks documents and information relating to negotiation of the collective bargaining agreement between the Committee and the Malden Education Association (Union) which documents and intonation fall squarely within the exemption from disclosure under G.L. c. 30A, § 22(f) and G.L. c. 4, § 7(26)(a). The Committee continues to withhold the requested documents and records from disclosure relating to the discussion of strategy in preparation for negotiations with the Union, including proposals and tentative agreements, because public release may have a detrimental effect on its ongoing bargaining position with respect to collective bargaining units representing school district employees. Although the negotiations regarding the Union have concluded, the executive session purpose has not yet expired because disclosure of the unreleased information would harm its position with respect to other bargaining units, or in future negotiations with the same unit… Even where some aspects of the Committee’s general negotiating strategy may have been disclosed to the public through other means, the Committee may still withhold portions of executive session minutes where public disclosure of specific executive session discussions may defeat the lawful purposes of the executive sessions… As such, the Committee respectfully and permissibly declines to disclose the requested records. Current Appeal In his appeal, Mr. Ebb states, “the requested documents must be produced because (i) they were used in actual collective bargaining sessions with the Malden Education Association (and not merely in the School Committee’s strategy discussions in preparation for those

Superintendent Timothy Sippel SPR24/2220 Page 3 August 19, 2024 bargaining sessions, the rationale cited in [the Committee]’s reply), (ii) the negotiations have been completed and a new collective bargaining agreement has been signed, and (iii) as a result, the executive session purpose for withholding the documents no longer applies.” Open Meeting Law The response that was provided by the Committee raises issues that invoke the Open Meeting Law. See G. L. c. 30A, § 22(f). 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 matter. Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Amy Friedman