Chris Shepley v. Andover, Town of - Public Schools (SPR 20243177)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2024 SPR24/3177 Alison Phelan Records Access Officer Andover Public Schools 36R Bartlet Street Andover, MA 01810 Dear Ms. Phelan: I have received the petition of Chris Shepley appealing the response of the Andover 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 October 15, 2024, Mr. Shepley requested, “copies of the minutes from the executive sessions held by the Andover School Committee and its negotiations subcommittee during the year 2023” for 70 specified dates. On October 25, 2024, the School provided a response, denying access to the responsive records. Unsatisfied with the response, Mr. Shepley petitioned this office and this appeal, SPR24/3177, 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. 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. 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

Alison Phelan SPR24/3177 Page 2 December 5, 2024 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 School’s October 25th Response In its October 25, 2024 response, the School stated, “[p]lease be advised that the Committee did not hold executive sessions on January 19th or February 15th.” Additionally, the School cited the Open Meeting Law to withhold records and stated the following: As of the date of this response, the Committee has reviewed the requested executive session minutes for the requested dates 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 [Exemption (a)]... Exemption (a) excludes from the definition of public records any records that are specifically or by necessary implication exempted from disclosure by statute. Executive session minutes are specifically exempted from disclosure under the Open Meeting Law, M.G.L. c. 30A, §22(f) (The minutes of any executive session, the notes, recordings or other materials used in the preparation of such minutes and all documents and exhibits used at the session, may be withheld from disclosure to the public in their entirety…as long as publication may defeat the lawful purposes of the executive session…). At this time, the Committee has determined that the purpose for these executive sessions remain ongoing because they contain negotiation strategy and their release could affect the School Committee’s bargaining position in upcoming negotiations. It is well-settled that a public body may continue to withhold minutes of a Purpose 3 executive session, in whole or in part, even after a final collective bargaining agreement has been reached, if the public release of those minutes could have a detrimental effect on the public body's collective bargaining position in future negotiations. Current Appeal In his appeal, Mr. Shepley states, “I believe this denial was improperly applied given that the contract negotiations have concluded and the resulting contract is not set to expire until 2027… The contract negotiations referenced in the minutes have concluded, and the contract itself is finalized and publicly executed. The purpose of confidentiality—to protect active negotiations—is no longer applicable… The argument that these minutes could affect future negotiations is speculative at best. The current contract does not expire until 2027, and it is impossible to predict the composition of the Committee or the specific strategies that will be employed in negotiations several years from now. Public records law does not support withholding records based on speculative future harm… The Open Meeting Law, M.G.L. c. 30A, §22(f), allows executive session minutes to be withheld only as long as publication would “defeat the lawful purposes of the executive session.” In this case, the lawful purpose—to

Alison Phelan SPR24/3177 Page 3 December 5, 2024 discuss active negotiation strategy—has already been fulfilled. Withholding these records now defeats the public’s right to transparency and accountability.” Open Meeting Law The response that was provided by the School 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: Chris Shepley