Davison, Andrew v. Sandwich, Town of (SPR 20140405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 6, 2014 SPR14/405 Mr. George H. Dunham Town Manager Town of Sandwich 130 Main Street Sandwich, MA 02563 Dear Mr. Dunham: I have received a petition from Andrew Davison appealing the response by the Town of Sandwich (Town) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Davison requested copies of: 1. Records of all phone calls and text messages sent and received from Deputy Fire Chief Thomas Corriveau's department issued cell phone, from April1, 2013 to September 1, 2013 and from December 15, 2013 to May 27, 2014, and 2. Records of all phone calls and text messages sent and received from Fire Chief George Russell from April 1, 2013 to December 31, 2013. By letter dated June 10, 2014, you informed Mr. Davison that the Town would comply with his May 27, 2014 request for the cell phone and text message records, and that the Information Technology (IT) Director would search and retrieve the data and export it to an Excel spreadsheet. You also provided Mr. Davison with a written, good faith estimate of $417.01, which included search and retrieval time of 8.5 hours at $49.06 per hour for the IT Director to conduct the tasks. Mr. Davison paid the estimate and was provided the records. The basis of Mr. Davison's appeal is that he believed that he was not provided with all the text messages. On September 15, 2014, the Town's Assistant Town Manager Douglas Lapt informed this office that Mr. Davison was provided with all the records that the Town had and that existed at the time of his request (May 27, 2014). It is my understanding that Mr. Davison received OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. George H. Dunham SPR14/405 Page Two October 6, 2014 approximately four hundred pages of records, telephone and text messages, and no records were withheld. In your September 15, 2014 letter, you explained the process that the IT Director used to extract all the telephone calls and text messages on the Fire Chief and Deputy Fire Chiefs phones. It is my understanding that the IT Director purchased two types of message retrieving software, and spent several hours in addition to the initial 8.5 hours for search and retrieval of all the cell phone calls and text messages that were available and recoverable. You explained that the Town did not charge Mr. Davison with any additional costs, including copying costs and reviewing for any possible exemptions in the Public Records Law. The Town provided Mr. Davison with approximately 200 pages of text messages. In an effort to ensure that the Town was being responsive to the request, the IT Director learned that extraction software can only capture what is actually on the phones at the time the extraction takes place, along with any deleted messages that are in a recoverable state. You explained that text messages are fleeting, transitory data that is not externally stored or backed up by the Town, therefore there may be some data that isn't retained on the phone. This is due to completing other functions like downloading documents or taking pictures, which will overwrite areas of internal memory where the deleted messages previously existed. A record holder's duty to comply with requests for information extends only to those records which exist and are in his custody. See G. L. c. 4, § 7 (26). There is no obligation to create a record in response to a public records request. G. L. c. 66, § 10 ( a); 32 Op. Att'y Gen. 157, 165 (May 18, 1977). There is a presumption that all government employees perform their duties in an honest and impartial manner. See LaPointe v. License Bd. of Worcester, 389 Mass. 454,459 (1983); see also Konover Mgt. Corp v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992). Records Retention A review by this office finds that the Town complied with Mr. Davison's request, by extracting all the telephone calls and text message that were on the cell phones, and has complied with the Public Records Law and its records retention requirements. Text messages are categorized as correspondence that is transitory. Transitory messages are not intended to formalize or perpetuate knowledge and do not set policy, establish guidelines or procedures, certify a transaction, or become a receipt. (See Record Series 01.022 Correspondence (d) Transitory Messages, Commonwealth of Massachusetts, Municipal Records Retention Manual, 2011).

Mr. George H. Dunham SPR14/405 Page Three October 6, 2014 Accordingly, whereas the Town has provided all the records within its custody, I will consider Mr. Davison's administrative appeal closed. In the event a request for reconsideration is honored by this office an acknowledgment will be provided to all parties, followed by a written determination by this office, to be provided within fifteen (15) business days. Requests for reconsideration filed more than thirty (30) days after the date of this letter will not be considered. Supervisor of Records cc: Mr. Andrew Davison