Executive Session Minutes (Middlesex County) (Sherborn Town Clerk (MA))

Diane, since I have no records responsive to this request, I am passing it along to you as the Assistant Town Administrator.
Carole

Carole B. Marple
Sherborn Town Clerk
19 Washington Street
Sherborn, Massachusetts 01770
1-508-651-7853
FAX 1-508-651-0407

BY ELECTRONIC MAIL ONLY

Caitlin Russell
MuckRock
DEPT MR 29140
411A Highland Ave
Somerville, MA 02144-2516

Re: Public Records Request dated October 25, 2016

Dear Caitlin;

This is in response to your Public Records Request via e-mail dated October 25, 2016 to the Board of Selectmen for all Board of Selectmen executive session meeting minutes from 2010-2015. The Town has records responsive to your request, and will provide those executive session meeting minutes which may be disclosed at this time. Under the Open Meeting Law, G.L. c. 30A §22A, executive session minutes are exempt from public disclosure until such time as the purpose for which a valid executive session was held has been served. Moreover, even where the purpose of the executive session has been served, the minutes of the executive session may nonetheless be redacted prior to disclosure, or in some instances withheld entirely, pursuant to the attorney client privilege or one or more of the applicable exemptions under the public records law.

Attached are executive session minutes which have been released by the Board of Selectmen and are responsive to your request.

The Board of Selectmen is currently reviewing additional executive session minutes to determine if the minutes may be released. The Board expects to complete this review by November 16, 2016. You will be informed if any of the requested minutes will be withheld because the purpose for the executive session has not yet expired, pursuant to G.L. c. 66, §10, G.L. c.4, §7(26) and G.L. c. 30A, §21. Reasons for the executive sessions at issue include but are not limited to personal and personnel matters, collective bargaining, ongoing litigation, strategy with respect to collective bargaining and litigation where open session would be detrimental to the Town's collective bargaining or litigation strategy, value of real property, and others. Where the purposes of any session or portion thereof have not been met, the minutes or portion thereof will be withheld from disclosure pursuant to the exemptions to the Public Records Law, G.L. c.4, §7(26). Furthermore, it is anticipated that information may be redacted from any released executive session meeting minutes pursuant to the attorney-client privilege. More specific information in this regard will follow, as the minutes are reviewed and released.

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

Diane Moores
Assistant Town Administrator
Town of Sherborn
19 Washington Street
Sherborn, MA 01770

Cc: David Williams, Town Administrator

BY ELECTRONIC MAIL ONLY

Caitlin Russell
MuckRock
DEPT MR 29140
411A Highland Ave
Somerville, MA 02144-2516

Re: Public Records Request dated October 25, 2016

Dear Caitlin:

This is in further response to your records request dated October 25, 2016, via e-mail dated to the Board of Selectmen for all Board of Selectmen executive session meeting minutes from 2010-2015. Please be advised that the Town has documents responsive to your requests and has attached copies of such documents to the extent that such records are subject to mandatory disclosure under the Public Records Law. G.L. c. 66, §10. Certain executive session minutes that you have requested are being withheld pursuant to law. Please note that the Board of Selectmen have two more executive session minutes to review; a further response will be provided after that review has been completed.

The Open Meeting Law, G.L. c.30A, §22(f) provides that all executive session records are exempt from disclosure in their entirety "as long as publication may defeat the lawful purposes of the executive session." Moreover, even where the purpose of the executive session has been served, the minutes of the executive session may nonetheless be redacted prior to disclosure, or in some instances withheld entirdely, pursuant to the attorney client privilege or one or more of the applicable exemptions under the Public Records Law. Thus, to the extent that responsive documents, or material contained therein, may be withheld under any of the exemptions to the Public Records Law, such documents shall be withheld and/or material redacted, as appropriate. G.L. c. 4, §7(26). Although certain exemptions to the Public Records Law are addressed below, the Town expressly reserves the right to assert the application of other exemptions, should the same prove appropriate, as the actual process of searching for and reviewing responsive records proceeds.

Minutes of March 12, 2015: The minutes of March 12, 2015 related to pending litigation are being withheld as the publication may defeat the lawful purposes of the executive session and therefore these executive session minutes fall within the exemption under G.L. c. 4 §7(26)(a) and G.L. c.30A, §22(f). It is also being withheld pursuant to exemption (d), which applies to

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.

This exemption is known as the "policy development" or "deliberative process" exemption. It applies to documents created when a particular board has not yet reached a final decision, or created a final document and allows for withholding of certain litigation or pre-litigation communications and documents. Exemption (d) 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 court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, "The 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.

In addition, these minutes are being withheld pursuant to the attorney-client privilege, as permitted by Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 449-450 (2007), under G.L. c. 4 §7(26)(a) and G.L. c. 30A, §22(f).

Minutes of September 18, 2014; July 24, 2014 and March 12, 2015: These minutes are being withheld as the publication may defeat the lawful purposes of the executive session and therefore these executive session minutes fall within the exemption under G.L. c. 4 §7(26)(a) and G.L. c.30A, §22(f). In addition, Town Counsel was present at these executive sessions, and therefore the minutes are being withheld pursuant to the attorney-client privilege, as permitted by Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 449-450 (2007), under G.L. c. 4 §7(26)(a) and G.L. c. 30A, §22(f).

Minutes of October 14, 2010: These minutes are being withheld pursuant to exemption (c) of the Public Records Law, which permits a records custodian to withhold records that are:

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 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).

In addition, these minutes are being withheld pursuant to the attorney-client privilege, as permitted by Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 449-450 (2007), under G.L. c. 4 §7(26)(a) and G.L. c. 30A, §22(f).

Minutes of March 26, 2015; April 8, 2015: These minutes are being withheld as the publication may defeat the lawful purposes of the executive session and therefore these executive session minutes fall within the exemption under G.L. c. 4 §7(26)(a) and G.L. c.30A, §22(f).These minutes are also being withheld pursuant to exemption (c) of the Public Records Law, which permits a records custodian to withhold records that are:

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 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 of October 30, 2014: Portions of these executive session minutes are being redacted as the publication may defeat the lawful purposes of the executive session and therefore portions of these executive session minutes fall within the exemption under G.L. c. 4 §7(26)(a) and G.L. c.30A, §22(f). In addition, exemption (d) applies here:

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.

This exemption is known as the "policy development" or "deliberative process" exemption. It applies to documents created when a particular board has not yet reached a final decision, or created a final document and allows for withholding of certain litigation or pre-litigation communications and documents. Exemption (d) 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 court in General Electric Company v. Department of Environmental Protection, 429 Mass. 798, 807 (1999) stated, " The 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.

In addition, these minutes are being withheld pursuant to the attorney-client privilege, as permitted by Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 449-450 (2007), under G.L. c. 4 §7(26)(a) and G.L. c. 30A, §22(f).

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

Diane Moores
Assistant Town Administrator
Town of Sherborn
19 Washington Street
Sherborn, MA 01770

(508) 651-7850

Diane Moores
Assistant Town Administrator
Town of Sherborn
19 Washington Street
Sherborn, MA 01770

(508) 651-7850

BY ELECTRONIC MAIL ONLY

Caitlin Russell
MuckRock
DEPT MR 29140
411A Highland Ave
Somerville, MA 02144-2516

Re: Public Records Request dated October 25, 2016

Dear Caitlin:

Attached please find the last two sets of Executive Session Minutes ( August 12, 2015 and November 24, 2015) that were approved by the Board of Selectmen on November 30, 2016.

These last two Executive Session minutes will have fulfilled your request.

Diane Moores
Assistant Town Administrator