Rogers, James v. Cape Light Compact (SPR 20140251)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 2, 2014 SPR14/251 Ms. Margaret T. Downey Cape Light Compact Barnstable Superior Court House P. 0. Box 427 Barnstable, MA 02630 Dear Ms. Downey: I have received the petition of James F. Rogers appealing the response of the Cape Light Compact (Compact) to his public records request. See G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Rogers requested electronic copies of records regarding Compact's accounting system and fiscal year fund financials. In your response you refused to provide the responsive records in electronic format. In addition you indicated that certain portions of the records would be redacted, and you provided a fee estimate to perform the work to provide the records. Mr. Rogers requested that other records be posted on the Compact's website in addition to those already published. Many governmental records custodians provide online copies of public records as a convenience to citizens seeking access to those records. Absent any statutory or regulatory obligation there is no requirement for a records custodian to post records online. Accordingly I will not opine on this portion ofMr. Rogers' appeal. Native format Mr. Rogers requested that the records responsive to this request be provided in their native electronic format. Claiming no exemption to the Public Records Law the Compact denied this portion of Mr. Rogers request claiming that it does not provide records in a format that can be manipulated. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Margaret T. Downey SPR14/251 Page Two May 2, 2014 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Where the native form of the records requested is electronic the Compact must respond to a request that the records be provided in that form. The Compact has claimed no exemption to assist it in denying records in their native form. Other states have recognized the fact that electronic records must be disclosed in native form response to a request for public record. See Lake v. City of Phoenix, 107 Fair Empl. Prac. Cas. (BNA) 1142 (2009) ("if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure."). Accordingly, I find that the Compact must provide documents in native form when so requested unless an exemption permits or requires non-disclosure. Exemptions The Compact denied providing certain records, citing Exemption (s) of the Public Records Law. The Compact denied access to other portions of records due to what it calls an agreement with NSTAR Electric and Gas. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995.); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Compact did not contain the specificity required in a denial of access to public records. Accordingly, the Compact is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. Please be advised that no government agency may make private an otherwise public document merely by entering into an agreement to keep its terms confidential. Washington Post Co. v. Department of Health and Human Services, 690 F.2d 252, 263 (D.C. Cir. 1982); see also Galvin v. Mass. Mut. Life Ins. Co., 20 Mass. L. Rep. 533, 28 (2006) (a public employee has no authority to override, by means of a promise of confidentiality, the General Court's determination that any document "made or received" by a public employee shall be available to the public unless one of the legislatively enacted exemptions applies). If such were the case, any government employee could unilaterally frustrate the purpose of the Public Records Law with a rubber stamp. See Washington Post Co., 690 F.2d at 263 (government agency cannot circumvent the Federal Freedom oflnformation Act with a private agreement). Therefore, absent a specific exemption claim the Compact cannot promise a third party it will withhold public records from mandatory disclosure. The Compact has yet to meet its burden in proving with specificity why certain requested records have not been made available and has not met its burden in explaining why responsive records cannot be provided in their native form. The Compact is hereby ordered, within ten (10)

Ms. Margaret T. Downey SPR14/251 Page Three May 2, 2014 days to provide Mr. Rogers with the requested records, or provide to Mr. Rogers and this office, with specificity, how a particular exemption applies to each record. If the Compact is planning to charge Mr. Rogers for the cost of complying with this public records request he must be provided with a revised detailed written, good faith estimate on each particular request prepared in a manner consistent with the Public Records Law and its Regulations. See G. L. c. 66, § 10; see also 950 C.M.R. 32.00. Failure to comply with this administrative order may result in the filing of a complaint for enforcement in the Super3ior Coturt by Mr. Rogers. This appeal is now closed. 1 yours, Shawn A. Williams Supervisor of Records cc: Mr. James F. Rogers