Handwerker, Ethan v. Lexington, Town of (SPR 20140778)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor of& cords March 18, 2015 SPR14/778 Mr. MinaS. Makarious, Esq. Anderson and Krieger, LLP One Canal Park; Suite 200 Cambridge, MA 02141 Dear Attorney Makarious: I have received a petition from Ethan Handwerker appealing the responses of the Town of Lexington (Town) to his December 5, 2014 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Mr. Handwerker requested copies ofrecords from the Town Clerk, the Health Division or Board of Health. Specifically, four categories of records related to the medical use of marijuana. In response to this request Town Chief Information Officer Donna Hooper directed Mr. Handwerker to the Town's website to obtain records provided to the Town Clerk. Ms. Hooper further informed Mr. Handwerker that his request for Health Division/Board of Health records would be forwarded to those departments. Subsequent to the intervention of this office, Ms. Hooper sent Mr. Handwerker and this office an email to clarify the Town Clerk's response. Ms. Hooper also explained that the Town Clerk's office has no records responsive to Mr. Handwerker's request to the Board of Health, restating that the Board of Health would provide its own response. I find that the Town Clerk's office has met its burden under the Public Records Law. Board of Health By email in December 2014, Gerard Cody, Chair of the Board of Health (Board) provided Mr. Handwerker a written estimate for obtaining copies of the requested records. With the estimate, Mr. Cody offered Mr. Handwerker the option of reviewing the records first before choosing which records he wants copied in order to reduce the costs. Records had been culled by the Board in order to satisfy Mr. Handwerker's request. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. MinaS. Makarious, Esq. SPR14/778 Page Two March 18, 2015 Mr. Handwerker informed this office that on December 5, he also requested the audio recording of the November 19, 2014 Board meeting. It is his belief that at that time, the audio recording did exist and that the written minutes had not yet been approved. In a discussion on February 27, 2015, you informed an attorney on my staff that the Board did not have the audio recording of the meeting on December 5, the date of Mr. Handwerker's request. You further clarified the status ofthe audio recording in a letter to Mr. Handwerker dated January 28,2015. It is my understanding that a copy of the draft minutes from the November 19 meeting have been provided and all associated fees waived. A records custodian is permitted to dispose of draft meeting minutes prior to approval of the minutes by a public body, so long as there is no significant variation between the two. See 01.07 4 Massachusetts Municipal Records Retention Manual, 2011 ed. (Retention Manual). The records custodian may dispose of an audio recording of a meeting once the minutes have been drafted, except where there is a pending request for public records, even if the retention period has passed. You informed this office that the Town has been advised of this requirement. Accordingly, I find that both the Office of the Town Clerk nd the Board of Health have met their burden under the Public Records Law. This administrat' e appeal is closed. Supervisor of Records cc: Mr. Gerard Cody Mr. Ethan Handwerker Ms. Nathalie Rice, Town Clerk