Michaela Michaud v. Billerica, Town of - Town Clerk (SPR 20242532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 19, 2024 SPR24/2532 Donna McCoy Town Clerk Town of Billerica 365 Boston Road, Office 101 Billerica, MA 01821 Dear Ms. McCoy: I have received the petition of Michaela Michaud appealing the response of the Town of Billerica (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 5, 2024, Ms. Michaud requested “… copies of the executive minutes and audio recording of the executive sessions of the select board for …” May 20, 2024; June 11, 2024; June 26, 2024; and July 15, 2024. The Town provided responses on August 26, 2024 and September 3, 2024. Unsatisfied with the Town’s response, Ms. Michaud petitioned this office and this appeal, SPR24/2532, was opened as a result. While this appeal was pending, the Town provided a supplemental response on September 12, 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 town 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 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

Donna McCoy SPR24/2532 Page 2 September 19, 2024 custodian must provide the responsive records. The Town’s Responses In its August 26, 2024 and September 3, 2024 responses, the Town explained to Ms. Michaud the procedure by which it reviews and releases the minutes of executive sessions. Current Appeal In her September 6, 2024 petition to this office, Ms. Michaud objected to the Town’s “… failure to provide an adequate and timely response … to provide a legally adequate reason or non-disclosure of the records … and/or identify a legal exemption to support continued non- disclosure of the records …” On September 12, 2024, the Town informed Ms. Michaud that no audio recordings responsive to her request existed, and provided redacted copies of the executive session minutes. The Town indicated that it redacted the records “… to protect the release of attorney-client privileged discussion and/or to protect the lawful purpose for which the executive sessions were convened.” Open Meeting Law The nature of the Town’s September 12th response raises 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. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Michaela Michaud Dawn McDowell