Improper Filing with Supervisor of Public Records Is No Defense to an Untimely OML Complaint
As municipal boards and committees are increasingly aware, Open Meeting Law complaints must be filed with the public body within 30 days of the alleged violation. M.G.L.c.30A, §23(b); 940 CMR 29.05(1). If the alleged violation could not have been known at the time it occurred, then the complaint must be filed with the public body within 30 days of the date on which the alleged violation could reasonably have been discovered. 940 CMR 29.05(3). In a recent decision, the Attorney General held that an alleged violation relating to executive session minutes was not reasonably discoverable until the complainant received a response to a Public Records appeal from the Supervisor of Public Records.
In OML Determination 2019-1 (available here), an individual filed a public records request for the Shirley Board of Selectmen’s executive session minutes. The Town Clerk responded that “many of these executive session minutes have not been completed and/or approved by the Board of Selectmen or redacted.” The Town never submitted a subsequent response.
The requester then appealed to the Supervisor of Public Records, asserting that the Board failed to comply with the Public Records Law. The Supervisor closed the appeal, however, declining “to provide a determination as to the status of the executive session minutes” and referred the complainant to the Attorney General’s office.
Matters related to the sufficiency of an executive session or whether executive session minutes are ripe for release fall squarely within the scope of the Open Meeting Law and, therefore, must be appealed to the Attorney General. In response to the appeal that was subsequently filed, the Board argued that the complaint was untimely because it was filed 58 days after the Board’s alleged failure to respond to the request. The Attorney General disagreed, however, holding that the violation was not reasonably discoverable until the Supervisor of Public Records responded to the Public Records Law complaint.
This decision not only takes the burden away from the complainant to understand what law is applicable in a given situation, but also greatly extends the time to challenge a public body’s action as it pertains to executive session minutes.