Kenneth Carangelo v. Nahant, Town of - Town Clerk (SPR 20251293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2025 SPR25/1293 Diane M. Dunfee Town Clerk Town of Nahant Nahant Town Hall 334 Nahant Road Nahant, MA 01908 Dear Ms. Dunfee: I have received the petition of Kenneth Carangelo appealing the response of the Town of Nahant (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 18, 2025, Mr. Carangelo requested “all executive session minutes and records from January 1, 2018 to the present” pertaining to: [1] All deliberations, discussions, and records related to Northeastern University’s announced intentions in January 2018 regarding its Nahant property, including: - Internal Town discussions and responses. - Consideration of potential alternatives to litigation. - Negotiations, proposals, and settlement discussions with Northeastern University. [2] The decision to use the Town’s legal standing and voluntarily join an existing private lawsuit requiring the defense of Nahant Preservation Trust and 27 named individuals. [3] The formulation of the Eminent Domain article and related legal strategies, including: - Justifications for pursuing eminent domain. - Risk assessments and legal advisories. - Any influence, contributions, or recommendations from third parties, including the Nahant Preservation Trust (NPT) or any other persons or entities. [4] Discussions regarding the BOS’s decision-making process throughout the litigation, including: 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

Diane M. Dunfee SPR25/1293 Page 2 May 21, 2025 - Legal strategies and rationales used to justify the Town’s actions. - Any debates or disagreements among Select Board members. - Consideration of potential settlement offers. [5] Votes taken in executive session related to litigation decisions (including whether the BOS formally voted to appeal court rulings). [6] Deliberations regarding the withholding of litigation-related information from the public, including any discussions on how to frame public messaging about the cases. [7] The role of the Nahant Preservation Trust (NPT) in executive session discussions regarding litigation, including: - Any participation of NPT members or representatives in closed meetings. - Any influence, direction, or recommendations provided by the NPT regarding the Town’s litigation strategy. - In addition to the Gift Agreement between the Town and NPT of May 2021, any financial commitments, legal coordination, or agreements between the BOS and NPT concerning the lawsuits against Northeastern University. - Any discussions involving the Common Interest Agreement, as amended, between the Town and the NPT, and the rationale for making the amendment. [8] Any executive session discussions, negotiations, or deliberations between the Town of Nahant and Northeastern University prior to the filing of litigation or during the course of legal proceedings, including any settlement offers or attempts at resolution. The Town responded on March 28, 2025. Unsatisfied with the Town’s response, Mr. Carangelo petitioned this office and this appeal, SPR25/1293, was opened as a result. While this appeal was pending, an attorney for the Town provided a supplemental response on May 12, 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).

Diane M. Dunfee SPR25/1293 Page 3 May 21, 2025 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 custodian must provide the responsive records. The Town’s March 28th and May 12th Responses In its March 28, 2025 response the Town cited the Open Meeting Law as it operates through Exemption (a) of the Public Records Law, as well as the attorney-client privilege and the work product doctrine, to withhold identified executive session minutes relevant to Mr. Carangelo’s request. See G. L. c. 4, § 7(26)(a); G. L. c. 30A, § 22(f). Additionally, the Town stated, “[d]ue to… the ongoing nature of litigation with Northeastern University concerning its Nahant property…release of minutes detailing the Town's bargaining position in the case or in related cases concerning Northeastern University would jeopardize the Town's current litigating position.” Current Appeal In his appeal petition, Mr. Carangelo claimed that the Town’s “refusal to release Board of Selectman executive session minutes” is deficient for the following reasons: [1] The Nahant Board of Selectmen has engaged in a sustained and systematic violation of the Open Meeting Law by failing to approve, review, or release executive session minutes since at least 2018. [2] The Town has claimed a continued exemption based on “ongoing litigation” for matters which have been decided on their merits, exhausted their appeals, and been discussed in open court for years. This claim is invalid for both the Dedication case and the Eminent Domain case. [3] Public gifts are public funds under the law yet are being managed without due transparency. [4] Major legal decisions were made in coordination with a private organization but without public oversight or disclosure [5]The Town’s claim of attorney-client privilege is excessively broad.

Diane M. Dunfee SPR25/1293 Page 4 May 21, 2025 [6] Several aspects of Massachusetts law confirm the public’s right to know. In a subsequent email to Mr. Carangelo on May 12, 2025, while this appeal was pending, an attorney for the Town stated, “[p]lease allow us a few days to review your materials and we will follow up next week.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its May 6th response, the Town recites the language of the Open Meeting Law and argues under Exemption (a) that “pursuant to the Open Meeting Law, executive session meeting minutes can be withheld until the litigation at issue concludes… [and] materials not disclosed to the public pursuant to the Open Meeting Law must be withheld.” Items 1, 2, 3, 4 and 6 Regarding Items 1, 2, 3, 4 and 6 of Mr. Carangelo’s request, it is unclear whether all of the requested records relate to executive sessions. Further, it is unclear whether the Town possesses additional records responsive to Items 1, 2, 3, 4 and 6 of the request, other than the identified executive session minutes. The Town must clarify this. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii).

Diane M. Dunfee SPR25/1293 Page 5 May 21, 2025 Items 5, 7 and 8 Regarding Items 5, 7 and 8 of the request, the Town’s response, along with Mr. Carangelo’s appeal petition, raise issues potentially related to the Open Meeting Law. See G. L. c. 30A, § 22(f). Given that an interpretation of the Open Meeting Law falls within the authority of the Attorney General’s Office (AGO) and not this office, I am unable to address those issues in this determination. See G. L. c. 30A, § 23. I encourage the parties to contact the AGO for a resolution of the Open Meeting Law issues. Conclusion Accordingly, the Town is ordered to provide Mr. Carangelo with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Mr. Carangelo may appeal the substantive nature of the Town’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kenneth Carangelo