Amanda Alix v. Shutesbury, Town of (SPR 20250547)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2025 SPR25/0547 Grace Bannasch Town Clerk Town of Shutesbury Shutesbury Town Hall 1 Cooleyville Road, P. O. Box 264 Shutesbury, MA 01072 Dear Ms. Bannasch: I have received the petition of Amanda Alix appealing the response of the Town of Shutesbury (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 12, 2024, Ms. Alix requested: [1] Zoom recording links for the 10/22/24 6:00 p.m. Select Board meeting and the 10/24/24 7:00 p.m. Conservation Commission meeting; [2] Executive session meeting minutes from the 10/24/23 Select Board meeting concerning a complaint filed against the Town Administrator; [3] Executive Session minutes from the following Select Board meetings concerning contract negotiations with the Town Administrator: 11/8/23; 12/5/23; 3/11/24; 3/27/24; 5/8/24; 5/20/24; 6/5/24; 6/17/24; 6/25/24. [4] Executive Session minutes regarding a letter by ‘[an identified] Attorney on behalf of a Board member’ at the 12/5/23 Select Board meeting; [5] All written communications by [identified] Attorneys regarding and in response to the letter by [an identified] Attorney. The Town responded on December 2, 2024, providing records responsive to the request, but denying Item 4 under Exemption (c) of the Public Records Law. Unsatisfied with the Town’s response, Ms. Alix appealed, and this case, SPR25/0547, 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

Grace Bannasch SPR25/0547 Page 2 March 6, 2025 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. 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. Current Appeal In her appeal petition to this office, Ms. Alix states, “I submit that the minutes reflect a discussion regarding a letter written by the then Conservation Commission Chair’s attorney about certain actions taken by town officials related to issues pending before the Commission and the Chair’s work thereon. Therefore, there seems no reason for and discussion of ‘intimate details,’ and, if there were, assumedly they could be redacted and released to me.” The Town’s December 2nd Response In its December 2, 2024 response, the Town states under Item 4 that “Town Counsel has advised that these minutes are exempted from public release in accordance with [G. L. c. 4, § 7(26)(c).]” Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c).

Grace Bannasch SPR25/0547 Page 3 March 6, 2025 Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. Based on the Town’s response, it is unclear how the record contains intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, it is not clear if the record is available from other sources. Additionally, the Town did not provide information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. at 292. Burden of Specificity The Town is advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Accordingly, the Town’s response did not contain the specificity required in a denial of access to public records. The Town must clarify these matters. Conclusion Accordingly, the Town is ordered to provide Ms. Alix with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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 pre@sec.state.ma.us.

Grace Bannasch SPR25/0547 Page 4 March 6, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Amanda Alix