State instructs Town it must justify exemptions to OML for records about Town-owned farm dump

by beth on November 19, 2019

Post image for State instructs Town it must justify exemptions to OML for records about Town-owned farm dump

Above: According to a Conservation Commission member, behind the lovely vistas at Breakneck Hill Conservation Land and the Town Forest lurks a “monster” of a farm dump. He has been looking to make records related to the dump available to the public. (L-R photo by Beth Melo and images cropped from Carl Guyer’s YouTube video)

A letter from the state’s Public Records Division ties together two recent stories on the blog: a rebuke of Southborough’s handling of Executive Session minutes and concerns raised about a “monster” on Town-owned Conservation Land.

Yesterday’s letter from the Secretary of State’s office addresses an appeal filed against the Town’s holding back of records from the public. Carl Guyer has been seeking to release unredacted Conservation Commission minutes and the Town’s attorney-client communications from ’05-’06. The documents relate to the farm dump at Breakneck Hill that Guyer brought to public attention last month. 

In the letter to the Town Administrator, a state official instructs that the Town must better justify keeping the documents confidential. It must respond to Guyer and the Secretary of State’s office “in a manner consistent with this order” within 10 business days. 

Less than a month ago, the Attorney General’s office found that the Board of Selectmen violated Open Meeting Law by mishandling past Executive Session minutes. An October letter to Town Counsel reminded:

Executive session minutes may be withheld from disclosure to the public “as long as publication may defeat the lawful purposes of the executive session, but no longer.”

An Assistant Attorney General followed that the Town has an obligation to review the held back minutes “at reasonable intervals” to determine if public records exemptions still apply. AAG Sarah Chase wrote that the board had failed to do so. (The board has yet to publicly address the state’s findings. That is on the agenda for their next meeting.)

Selectmen were ordered to attend a training by the AG’s office on Open Meeting Law. That session, also open to the public, is scheduled for tomorrow night.

As for the new finding, it stems from Guyer’s campaign to push the Town to cleanup a dumpsite on conservation land.

Guyer is a member of the Conservation Commission which is responsible for overseeing Town-owned Breakneck Hill Conservation Land. Acting as an individual, he recently made public his frustration over the Town’s inaction on cleaning up the dump.

In October, Guyer promoted awareness of the dump. Tapping into the timing of Halloween approaching, Carl Guyer invited the public to “Meet the Monster at Breakneck Hill”. The invitation explained that the “old and neglected” monster was:

in point of fact a dump. Old tires, rusting machine parts, rotting 55 gallon drums, asphalt singles, sinks and tanks, street sweepers, heavy equipment, broken ceramics, plastic objects; a general mess. All is out of sight hidden by fallen trees and overgrown vegetation just like in the movies. Owned by the Town of Southborough and under the control of our Conservation Commission.

The event was subsequently cancelled due to requirements that visitors need to stay on the official trails. Guyer explained that motive behind his invitation was to try to push the Town to clean up the site. At that time, Guyer commented that his knowledge of the dump’s origins and history was limited.

It appears that before and since, Guyer has been digging into Conservation’s records dating back to 2005. Yesterday’s letter from Supervisor of Records Rebecca S. Murray states:

on September 26, 2019, Mr. Guyer requested “historical documents from the Board of Selectmen, Board of Health and the Conservation Commission related to actions and decisions made regarding the commercial dump/landfill still in existence on the town own[ ed] property referred to as the Breakneck Hill conservation land.”

In an email to me, Guyer explained that as a Conservation member he already has access to the documents. What he wants is to make them available for the public. He also wants to clear the way for the commission to discuss them in public meetings. 

Guyer was denied the ability to make client-attorney communications from February 21, 2006 available to the public. He did manage to get the Town to release Conservation Commission Executive Session minutes from December 1st, 2005. (You can read those here.) But the version released includes redactions he would like removed.  

Guyer appealed to the state, asking for them to determine if the exemptions to public records law were legitimate. The state’s response doesn’t conclude that they were illegitimate. Instead, a state official found that the Town failed to “meet its burden” to demonstrate the exemptions are lawful.

On November 18th, Records Supervisor Rebecca S. Murray wrote to Town Administrator Mark Purple. (Purple is the Town official designated responsible for responding to public records requests to the Town.) The letter states that exemptions to public records are “narrowly construed and are not blanket in nature.” In regards the redacted minutes, she followed:

The Town’s response did not contain the specificity required in a denial of access to public records. Instead, the Town simply redacted portions of the responsive records without claiming any exemption(s) in the Public Records Law to support the redactions made.* Accordingly, I find that the Town has not established how it can withhold the records or portions of the record( s) at issue in this appeal.

As for the attorney-client privilege, she wrote:

A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also ( 1)
that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. . .

Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making.process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed. . .

Based upon the Town’s response, I find the Town has not established the existence of an attorney-client relationship in compliance with Suffolk and the Public Records Law. The Town
must identify the records, categories of records or portions of records in its possession that are responsive to the request and those which it intends to withhold. . .

Consequently, I find the Town did not meet its burden of specificity in claiming the attorney-client privilege to withhold records from disclosure under the requirements of the three
part test in Suffolk and the Public Records Law

Click here to read the full letter.

*I was curious if that finding would have implications for how the Town handles other redacted meeting minutes. Looking at the Board of Selectmen’s redacted Executive Session minutes on the Town website, it appears that even the justification for exemption is redacted. However I should note, that the board’s exemption justification can normally be found on the related agenda. Plus, the Executive Session is usually entered into following a public meeting, and the exemption cited is generally found in those minutes prior to the vote to enter into closed session.

{ 7 comments… read them below or add one }

1 Say What Again?? November 19, 2019 at 2:37 PM

Say what? When is this Town going to act with accountability, transparency and professionalism? Never? Completely fed up with the same old good-ole-boys, unprofessional “volunteers,” and those who chose to kick the can down the road.

What is the town waiting for? Get rid of those who are dispensing bum legal advice. Why can’t this BOS tell the difference between good legal advice and bad?

The taxpayers are not going to pay for flushing good money down the john for bad advice that leaves the town open to risks. For goodness sake, do something. As usual, the citizens themselves will have to take steps toward better professionalism and cleaner government, which includes the ballot box.

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2 Boston legal November 19, 2019 at 8:16 PM

Actually one of the former Con Com members “Rhonda Russian is actually an attorney for the DEP.
if anyone understood the seriousness of the matter combined with the contamination of a major water supply as the stream flows to the Sudbury reservoir. If the limits at the time of testing were so high why did they pass on it then . ? Did they think it would get better with time>? Everyone looked the other way and forgot about it.

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3 Kristin LaVault November 20, 2019 at 1:52 AM

Hi,

I’m a member of the Recreation Commission. I typically don’t reply to posts because of that, but feel the need to weigh in on this one. The comments I’m posting aren’t the opinions of the Commission; they are mine as a citizen.

My comments aren’t focused on Breakneck Hill, although I do hope we can clean up the site. I’m posting about an earlier anonymous comment made by a user called “Say What Again??”. (Personally I have no respect for anonymous posters.)

“Completely fed up with the same old good-ole-boys, unprofessional “volunteers,” and those who chose to kick the can down the road.”

One question – are you volunteering? The people who provide their nonexistent “extra time” should be thanked and not criticized. If you think they aren’t doing a good job, then please jump in. There are no shortage of opportunities. Monday morning quarterbacking is just too easy.

Thanks to all who are helping to work through this issue. For those who can’t be as involved in town politics (because sports, kids, jobs, charities, etc. are there too) please talk to and support those who can.

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4 Say What Again?? November 20, 2019 at 10:34 AM

The town citizens owe deep appreciation and thanks to Mr. Guyer for shedding sunshine on a matter that remains buried. Clearly you are confused, Ms. Lavault, and misunderstand the issue described above. Reread the article. Why is a good concerned committee member (and volunteer) having to go to the extraordinary steps of petitioning the state public records division to shed light on public town business? That is the point. Click on the link above to the letter from State’s Public Records Division and read it carefully. It states: “The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records, G.L. c.66, s.10A(d); 950 C.M.R. 32.03(4). They are ordering a response. All of this is on the heels of other major violations of state Open Meeting Law. See the newspaper, Worcester Telegram and tonight’s mandatory training session. There must be transparency on public town business. Thanks to Mr. Guyer and all those who fight for the public’s right to know. Thanks for his courage and hard work.

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5 Kathy Cook November 24, 2019 at 12:26 PM

I am responding to Say What Again. Like Ms. LaVault ( who also responded) I am responding as a resident and not in any official capacity on a Southborough board or committee.

Reading comments like those of Say What Again are depressing. Reading those posts in a vacuum would lead one to conclude that those that volunteer on the various board and committees of Southborough intentionally and continually violate Massachusetts law and strive to make matters as opaque as possible. Neither are true. That doesn’t mean unintentional mistakes are not made. They are.

Those that take the time and significant effort to lend their talents and expertise to Southborough are honorable, hard-working people and should have not have to endure the continual vitriole from a few anonymous posters on this blog that seem to always want to find fault.

I also commend Mr. Guyer for the issues he fights for. He uses his name and makes his stances on issues (split tax rate, Breakneck Hill Road, green issues, etc.) known but does so in an appropriate manner. Say What Again should take a lesson from Mr. Guyer.

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6 Honestly Able November 25, 2019 at 3:32 PM

Ms. Cook, could not be more in disagreement with your comments. Legitimate complaints about Open Meeting Law violations, found true and “egregious” by the Attorney General’s Office is not “continual vitriol.” This is shedding legitimate sunshine on an obvious problem. Shame on you for minimalizing these matters. There is no nefarious intent to trying to get compliance with state law.

The AGO is the last word on trying to get compliance and they say it is not OK to minimalize the violations or their efforts. Also, it is not ok to give a blanket pass for years and years of violations. Read the letters, read the content of the minutes withheld, read the law and perhaps it will make more sense why most people do not agree with you. Also, it is a mystery to many as to why all volunteers receive a copy of the law, but scores of violations happen, including lawyers who are volunteers. If the AGO had not issued their decision, those minutes would never have found their way to the public. Think about it. That is chilling.

Also, it is disappointing to say the least that there are concerns over conflicts of interest and appearances of conflicts of interest. There are several committee members who have direct financial relationships with developers (including direct business relationships) who appear regularly before boards. Given the alternative, those citizens who may find themselves on the other side of an issue would rather that those members follow state law and recuse themselves.

Agree with previous comment: “It is important to note that the town owes thanks to all those who who shed light on the many years of shortcomings. None of the minutes would have been released in the first instance without the immense work and persistence to push for compliance with Open Meeting Law. All of these new improvements are a direct result of hard work for better transparency and better functioning government. While the new improvements are a good step, no amount of education will offset those who are provided with copies of the law, but do not comply. The minutes are the only way for the working public to know what is going on. This BOS is irritated with the admonishments and the mandatory education. They have barely mentioned previous violations under “other business” category on the agenda. As the AGO found, the violations are “egregious” and “go to the heart of Open Meeting Law.” It is all about the substance contained in the minutes and conducting business in the open.”

The real work is turning the ship wheel and getting improved, better functioning and transparency. Why aren’t you supporting that? Why aren’t you asking the question as to why a town committee member is having to turn to the state to get records released?

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7 my town sb southborough November 26, 2019 at 9:12 PM

Don’t be depressed. We’re in touch, so you be in touch. We’re active alright. We just don’t need pats on the back, luncheons, or trophies. Volunteers should be sqeeky clean, as members of boards the same. Volunteers or board members are not immune to punishment for repeatedly committing offenses. We’re here, to right the continual wrongs, month after month, year after year. We think of ourselves as Batman and Robin.

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