Executive Session Minutes (Plymouth County) (Lakeville Town Clerk)

Good morning Caitlin,

According to your email, you are looking for Swansea’s Board of Selectmen’s Executive minutes from 2010- end of 2015.

You will need to reach out to the Board of Selectmen in Swansea for your request.

Regards,
~Lillian
Lakeville Town Clerk

Lillian M. Drane, CMC
Town Clerk & Chief Elections Officer,
Justice of the Peace, Notary Public,
Commissioner to Qualify & Burial Agent
Town of Lakeville
346 Bedford Street
Lakeville, MA 02347
Office: 508-946-8800
Fax: 508-946-3970
Email: ldrane@lakevillema.org
Web: www.lakevillema.org
[cid:image001.jpg@01C6F106.0AA34D90] [Online Voter Registration in Massachusetts]
Please be advised that the Massachusetts Secretary of State considers
e-mail to be a public record, and therefore subject to public access
under the Massachusetts Public Records Law, M.G.L. c.66.s.10
Attention:
If you are submitting a meeting posting, please note that the following applies to the meeting: “Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within ten days.” G.L. c. 30A §22(c).

Hi Caitlin,

This email will be forward to Rita Garbitt, Town Administrator.

Should you have any questions, please email her at rgarbitt@lakevillema.org<mailto:rgarbitt@lakevillema.org> at your convenience.

~Regards,
Lillian

Lillian M. Drane, CMC
Town Clerk & Chief Elections Officer,
Justice of the Peace, Notary Public,
Commissioner to Qualify & Burial Agent
Town of Lakeville
346 Bedford Street
Lakeville, MA 02347
Office: 508-946-8800
Fax: 508-946-3970
Email: ldrane@lakevillema.org
Web: www.lakevillema.org
[cid:image001.jpg@01C6F106.0AA34D90] [Online Voter Registration in Massachusetts]
Please be advised that the Massachusetts Secretary of State considers
e-mail to be a public record, and therefore subject to public access
under the Massachusetts Public Records Law, M.G.L. c.66.s.10
Attention:
If you are submitting a meeting posting, please note that the following applies to the meeting: “Minutes of all open sessions shall be created and approved in a timely manner. The minutes of an open session, if they exist and whether approved or in draft form, shall be made available upon request by any person within ten days.” G.L. c. 30A §22(c).

Hi Caitlin:

Please see my attached response to your public records request. The Board of Selectmen will be voting to release the minutes at their next meeting scheduled for Monday, November 14, 2016. I will be in touch with you, after their meeting.

Rita

Rita A. Garbitt
Town Administrator
Town of Lakeville
346 Bedford Street
Lakeville, MA 02347
Phone: 508-946-8803
Email: rgarbitt@lakevillema.org

[Town Seal]

Please be advised that the Massachusetts Secretary of State considers e-mail to be a public
record, and therefore subject to public access under Massachusetts Public Records Law, M.G.L. c. 66 s.10

This office serves as Town Counsel to the Town of Lakeville, which has asked me to follow up on the below public records request. In that request, dated October 27, 2016, you asked for copies of Board of Selectmen Executive Session meeting minutes from 2010-2015. You were previously advised that the Board of Selectmen would be undertaking its review of said minutes, which occurred on November 14, 2016. Attached (or following in additional emails, as may be necessary due to size limitations) are all minutes that are being released at this time, either with or without redactions.

The following exemptions are invoked as bases for withholding/redaction. The Town of Lakeville reserves its rights to invoke any additional exemptions available under law. Some minutes are being withheld and/or redacted for multiple reasons, and therefore the same set of minutes may be listed more than one time, below.

Exemption (a):

Redactions and/or withholding of certain executive session meeting minutes are appropriate under Exemption (a) to the Public Records Law, G.L. c. 4, §26(7)(a). Under exemption (a), records that are "specifically or by necessary implication exempted from disclosure by statute" may be withheld from disclosure, or relevant information redacted therefrom. Exemption (a) has been interpreted to mean that requested materials may be withheld where the language of the statute of exemption relied upon expressly states or necessarily implies that the public's right to inspect records under the Public Records Law is restricted.

In this instance, several sets of minutes contain discussions that involve matters that may be withheld from public disclosure under the Open Meeting Law, G.L. c. 30A, §21(a) and §22(f), whereby executive session minutes may be withheld so long as publication may defeat the lawful purposes of the executive session. Minutes from the following meetings are being redacted (or withheld entirely, as noted below) pursuant to G.L. c. 30A, §21(a) and §22(f), through operation of exemption (a):

5/10/10; 6/26/10; 8/2/10; 9/22/11; 10/17/11; 12/19/11; 8/21/12; 2/25/13:. The public disclosure of strategy sessions in anticipation of or connection with collective bargaining negotiations may adversely impact the Town's future negotiating position. Where such collective bargaining negotiations are anticipated at least every three years, if not sooner, the Town asserts that the public disclosure of collective bargaining strategy discussions held between 2010-2015 may negatively impact the next cycle of collective bargaining negotiations, as the current contracts generally expire July 30, 2017, thus certain content has been redacted from these minutes.

12/15/14: These minutes involve discussions of litigation strategy for a matter which is not yet resolved. As such, the Town asserts that public disclosure of these minutes will adversely impact its litigating position, and thus certain content has been redacted from these minutes.

8/12/15: These minutes involve a discussion of the deployment of or strategy regarding security personnel and/or devices. It is the Town's position that the purpose for such an executive session does not expire.

12/30/15: These minutes involve a discussion about the Fire Chief's employment contract, which has not yet been finalized, and therefore they are being withheld at this time, as public disclosure of same may adversely impact the Town's negotiating position, and the purpose for the executive session has not yet expired.

Student Privacy: A name has been redacted from the minutes of 3/5/12 due to student privacy/confidentiality. See 603 CMR 23.07.

Exemption (c):

Under exemption (c) of the Public Records Law [G.L. c. 4, §7(26)], the Town may withhold records that contain:

Personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.

Exemption (c) contains two separate bases for non-disclosure. The first clause of exemption (c) covers personnel (and medical) records and information. The Massachusetts Supreme Judicial Court ("SJC") has defined personnel records to include any records that would be helpful in making determinations regarding hiring and firing. Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 798 (2000). Specifically, the SJC stated:

While the precise contours of the legislative term "personnel [file] or information" may require case-by-case articulation, it includes, at a minimum, employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee. These constitute the core categories of personnel information that are "useful in making employment decisions regarding an employee."

Such records are "absolutely exempt from disclosure," as non-disclosure protects "the government's ability to function effectively as an employer." Id. at 799, 802; see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983); Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987).

Minutes that have been redacted or withheld (as noted) under the first clause of exemption (c) are: 2/8/10; 2/22/10; 3/8/10; 3/18/10; 3/22/10; 3/23/10; 3/30/10; 4/7/10; 8/30/10; 9/13/10; 11/8/10; 6/6/11; 11/7/11; 9/23/13; 1/27/14; 10/1/14; 11/3/14; 3/9/15; 4/7/15; 5/11/15; 5/26/15; 6/8/15; 6/15/15; 7/14/15; 12/2/15; 12/30/15 (withheld). In many instances, the name of the affected employee(s) has been redacted, as permitted under the first clause of exemption (c), to protect those individuals' personal privacy interests. The minutes of 1/27/14; 12/2/15 are also being redacted because they contain medical information about employees.

The following minutes are being withheld in their entirety under the first clause of exemption (c): 1/5/15; 1/12/15; 1/24/15; 8/25/15. The minutes of 1/5/15 additional contain medical information about an employee, providing another basis for withholding.

Exemption (d):

Under exemption (d) [G.L. c. 4, §26(7)(d)], the Town may withhold or redact (as appropriate) "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the [public body]." 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."

The courts and the Supervisor of Records have construed exemption (d) as applying to records concerning ongoing litigation involving a public body. See, e.g., Lafferty v. Martha's Vineyard Commission, Superior Court, C.A. No. 03-3397, 2004 WL 792712, Memorandum of Decision and Order on Plaintiff's Motion for Summary Judgment (Brassard, J., April 9, 2004) (citations omitted). "The preparation of and involvement in litigation by [a public body] inherently entails the development of 'policy positions' by that [public body].... Further, the [public body] prosecutes a strategy for the litigation, and its 'policy positions' are frequently subject to change and refinement throughout the litigation." Id., 2004 WL 792712 at *3. One set of executive session minutes contain discussions concerning an ongoing disputes involving the Town which has not yet finally resolved, and accordingly, those minutes are being redacted under Exemption (d): 12/15/14.

Exemption (n):

The minutes of 8/12/15 are being redacted to protect public safety, pursuant to exemption (n).

Attorney-client privilege:

In the case of Suffolk Construction v. DCAM, 449 Mass. 444, 449-450 (2007), the SJC recognized and acknowledged the application of the attorney-client privilege to governmental entities. It is the Town's position that certain, limited content in the executive session minutes is protected under the attorney-client privilege. It is the Town's further position that these executive session minutes reflect communications that were made in confidence, for purposes of soliciting legal advice, and that the Board has not waived the attorney-client privilege with respect to such communications. Minutes that have been redacted under the attorney-client privilege are: 4/9/12.

Pursuant to 950 CMR 32.08, you may appeal this response to the Supervisor of Public Records within 90 days.

Kopelman and Paige is now KP | LAW

Michele E. Randazzo, Esq.
KP | LAW
101 Arch Street, 12th Floor
Boston, MA 02110
O: (617) 556 0007
F: (617) 654 1735
mrandazzo@k-plaw.com
www.k-plaw.com

This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is PRIVILEGED and CONFIDENTIAL and/or may contain ATTORNEY WORK PRODUCT. If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and attachments thereto, if any, and destroy any hard copies you may have created and notify me immediately.