Open Meeting Law and Executive Session; Executive Search Firms and Public Records Law

Tom Caywood has an article up about a request made, and denied, for rankings of all the city manager candidates.  While I’m not a lawyer, I’d like to clarify some things about Open Meeting Law and Public Records Law.

Open Meeting Law and Executive Session

Since I’ve spent lots of time reading the law and decisions from the AG’s office — and since I’ve attended one more Open Meeting Law training than many of your elected officials — I’d like to direct my readers to what OML actually says about executive session meetings.

From the AG’s website:

Executive Session Meeting Records

Public bodies are not required to disclose the minutes, notes or other materials used in an executive session where the disclosure of these records may defeat the lawful purposes of the executive session. Once disclosure would no longer defeat the purposes of the executive session, minutes and other records from that executive session must be disclosed unless they are within an exemption to the Public Records Law, G.L. c. 4, § 7, cl. 26, or the attorney-client privilege applies. The public body is also required to periodically review the executive session minutes to determine whether continued non-disclosure is warranted, and such determination must be included in the minutes of the body’s next meeting. A public body must respond to a request to inspect or copy executive session minutes within 10 days of request and promptly release the records if they are subject to disclosure. If the body has not performed a review to determine whether they are subject to disclosure, it must do so prior to its next meeting or within 30 days, whichever is sooner.

It’s not clear whether the individuals who requested records from the City Clerk’s Office, Edward Landau and Lillian Corti, specifically asked for the Municipal Operations subcommittee meeting minutes. But they are entitled to those minutes and they should ask for them if they have not already.

What about letters?

If City Councilors corresponded with Randi Frank — or anyone else — regarding city manager candidates — or, really, anything — then a resident can request those letters or emails as well, and should get a better response than what Dr. Landau and Ms. Corti received.

If a city councilor sends me a letter in their role as a city councilor, and someone requests a copy, the response should never be, “Well, you’ll need to ask Miss Apostola.”  It’s official correspondence and, with a few exceptions, is public record.

But it’s an executive search firm!

Much as it depresses me to say it, Randi Frank was performing a governmental function, and she constitutes a body “receiving public funds or benefits.”  So if she met individually with councilors and wrote down what they had to say about individual candidates, or ranked them, then that, too, could be subject to public records law.

From the RCFP Open Government Guide:

Nevertheless, when a governmental body outsources the provision of certain governmental services to private third parties, “[a]ll records created in fulfillment of the obligations of the contract are government records,” and such records must be made available to the public even when they are in the hands of the third-party vendor. SPR Bulletin No. 3-93, “Requirement to Manage Records Created Under Government Contracts (Dec. 23, 1993). … Therefore they fall within the scope of the Public Records Law, regardless of where they are created and stored. Just as such records, when kept in government offices, are “routinely accessible to citizens,” the Supervisor of Public Records has advised that the same standard applies when “such records are created and stored in contractors’ offices.” Id. “This change in location does not abrogate the government’s obligation to ensure public accountability and public access to those government records,” the Supervisor has stated. Id. (Relying on this principle the Supervisor in 2009 required the Town of Watertown to provide names, addresses, and amounts owed by town’s top 10 parking scofflaws.) Government entities entering into contracts for third-party services must include provisions – at least as broad as those contained in the Public Records Law — “describing the creation, security, accessibility, disposition, and custody” of those records, and no such records may be destroyed without authorization.

The response Dr. Landau and Ms. Corti received was one usually reserved for people who ask the Worcester Police Department for public records.

“Ask Randi Frank” is not the appropriate response to their request.

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