Baril, Michael v. Warren Town of - Planning Board (SPR 20150019)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 19, 2015 SPRlS/019 Mr. Brian W. Riley, Esq. Kopelman and Paige, P.C. 10 1 Arch Street Boston, MA 02110 Dear Attorney Riley: I have received the petition of Michael Baril appealing the response of the Town of Warren (Town) Planning Board (Board) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Baril requested copies of the Board of Selectmen (Board) emails. The Town provided copies of emails with personal email addresses of public employees redacted. The basis of Mr. Baril's appeal is that the Town has not claimed any exemption to the Public Records Law for withholding the email addresses. In a letter dated February 15,2015 you informed my office that the Town withheld the records pursuant to Exemption (a) and (c) of the Public Records Law. I find this letter fails to meet the burden by the Town and its Board to deny access to public records. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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). A public employee has a diminished expectation of privacy with respect to use of personal emails used in an official capacity. Many boards in Massachusetts make personal email addresses for its members available on its websites. At least one Court has found that personal OneAshburton Place, Room 1719, Boston, Massachusetts 02108. (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Brian W. Riley, Esq. SPR15/019 Page Two March 19,2015 email addresses used for a public purpose by a government employee are a public record. See Mechling v. City ofMonroe, 152 Wn. App. 830; (2009). (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). I find the Town has failed to meet its burden of specificity in denying access to public records. Accordingly, the Town is hereby ordered to provide the responsive records in un redacted form to Mr. Baril in a manner consistent with this order, the Public Records Law and its Regulations. If the Town intends to withhold or redact any portion of the responsive records it must, within ten (1 0) days provide to Mr. Baril a written explanation, with specificity, how a particular exemption applies. This administrative appeal is now closed. a Supervisor of Records cc: Mr. Michael Baril