Stanley, Brian v. Lincoln, Town of - Town Clerk (SPR 20261294)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2026 SPR26/1294 Timothy S. Higgins Town Administrator Town of Lincoln 16 Lincoln Road Lincoln, MA 01773 Dear Mr. Higgins: I have received the petition of Brian Stanley appealing the response of the Town of Lincoln (Town) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April7, 2026, Mr. Stanley referred to an earlier request, and requested the following: This new request is for any documentation which substantiates the date and/or time of any proceedings related to the records requested in Request #2026-0042. Records responsive to this request could include, but are not limited to, calendar invites, court docket dates, Select Board Agendas, Select Board Minutes, email exchanges between the Town administrative members and the Select Board, email exchanges between the Town and the POST Commission, and any other documentation that identifies the future date and/or time of proceedings related to the final and full adjudication of the Town’s “internal review” of the matters related to former police chief [a named individual]. In short, this request seeks to understand when matters related to the review will take place, and any documentation which outlines a response to that matter will be sufficient. The Town responded on April 8, 2026, and assigned reference number 2026-0046 to this request. Unsatisfied with the Town’s response, Mr. Stanley petitioned this office, and this appeal, SPR26/1294, 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 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

Timothy S. Higgins SPR26/1294 Page 2 April 22, 2026 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. 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. Current Appeal In his appeal petition, Mr. Stanley argues the following: I am appealing their withholding under this rationale. This appeal stems from three facts: 1) Records reflecting the dates and times of past or future meetings or discussions are administrative in nature and do not reveal the substance of deliberations or recommendations. 2) Providing past or future dates of planned discussion related to the Select Board’s Internal Review – executive or public – do not inherently fall under the scope of “[tainting] the deliberative process if prematurely disclosed,” nor do they meet the requirements of G.L. c. 30A, § 22. 3) Past or future dates of discussion surrounding The Town’s Internal Review of the matter of … is not a matter of attorney-client privilege, nor is subject to other privacy concerns. The Town does not explain how the disclosure of dates, as opposed to substantive materials, would meet the criteria for these exemptions. While materials reflecting the content of the Internal Review may be properly withheld while the matter is ongoing, the dates on which the Select Board has met or plans to meet regarding this matter are distinct and concern basic governmental transparency. The Town’s April 7th and April 8th Responses In its April 8, 2026 response, the Town provides a link to a website with some responsive records, refers to a prior April 7, 2026 response to an earlier request, and states that “[a]ll documents in the possession of the Town are subject to withholding on the basis of the prior response to you. That response is incorporated by reference.”

Timothy S. Higgins SPR26/1294 Page 3 April 22, 2026 In its prior April 7, 2026 response, the Town cites the Open Meeting Law, and Exemption (d) of the Public Records Law for withholding responsive records. See G. L. c. 30A, § 22; G. L. c. 4, § 7(26)(d). Open Meeting Law In its April 7th response, the Town states the following: [N]ote that executive session materials that have not been voted by the Select Board to be released at this time have been withheld under G.L. c. 30A, § 22, as that statute operates through exemption (a) to the public records law, G.L. c. 4, § 7(26)(a). The Town’s response and Mr. Stanley’s appeal petition raise issues potentially related to the Open Meeting Law. See G. L.c. 30A, § 22(f). The authority to opine on Open Meeting Law matters, including executive session minutes, rests with the Open Government Division of the Office of the Attorney General (AGO). See G. L. c. 30A, § 23. Therefore, I decline to opine on the request pertaining to the executive session minutes. I advise the parties to consult with the AGO regarding the records pertaining to the executive sessions. Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In its April 7th response, under Exemption (d), the Town argues the following: At the present time the subject matter of the document that you are seeking has not been fully and finally adjudicated. The matter remains pending before both

Timothy S. Higgins SPR26/1294 Page 4 April 22, 2026 the Select Board as well as the Peace Officers Standards and Training Commission (“POST”). Litigation in the matter is not yet concluded. Summary of Basis(es) for Withholding of Responsive Records Based on the Town’s initial review of the records responsive to this request, the Town is withholding the requested records pursuant to exemption (d) of the Public Records Law. Exemption (d) to the Public Records Law, G.L. c. 4, §7(26)(d), permits the withholding of “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” This exemption is intended to avoid release of materials which could taint the deliberative process if prematurely disclosed. The application of the exemption is limited to recommendations on legal and policy matters found within an ongoing deliberative process. Babets v. Secretary of the Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). In considering Exemption (d), the SJC in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, “[t]he purpose of Exemption (d) is “to foster independent discussions between those responsible for a governmental decision in order to secure the quality of the decision.” Id. Based on the Town’s response, I find it is unclear what deliberative process the responsive records relate to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the records would taint any ongoing deliberative process. Additionally, I find the Town has not established how the records at issue are “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5). The Town must clarify these matters. Further, any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Additionally, it is unclear from the Town’s response which specific records the Town intends to withhold. To deny access to a record under the Public Records Law, a records access

Timothy S. Higgins SPR26/1294 Page 5 April 22, 2026 officer must identify the records, categories of records, or portions of the records it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Consequently, the Town must identify the records it intends to withhold under Exemptions (d). Conclusion Accordingly, the Town is ordered to provide Mr. Stanley with a response to the 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. Stanley may further 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: Brian Stanley