Shaffer, Maya v. City of Chicopee Law Department (SPR 20150487)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 13, 2015 SPRlS/487 Mr. Thomas J. Rooke, Esq. City of Chicopee Law Department City Hall 17 Springfield Street Chicopee, MA 01013-2776 Dear Attorney Rooke: I have received the petition of Maya Shaffer of the Bay State Examiner appealing the response of the City of Chicopee (City) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. Shaffer requested copies of"all emails to and from the email address tjrlaw@verizon.net from March 25,2015 up to the time ofher request. In a response dated June 19, 2015 the City denied her request in its entirety. The City's position for denying access to the emails was that tjrlaw@verizon.net is a private email account and not a public document which contains attorney client privileged communications that are "work product" and not subject to disclosure. Access to a record requested pursuant to the Public Records Law rests on the content of the record. "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, § 7(26). The statutory definition of"public records" does not distinguish between paper records and electronically stored information (ESI). G. L. c. 4, § 7(26). Rather, the law provides that all information made or received by a public entity, regardless of the manner in which it exists, constitutes "public records." A records custodian is obliged to furnish copies of non-exempt portions of computerized information at the cost of reproduction, unless otherwise provided by law. If the email account contains any records that fall within the definition of "public Record" and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a) (2006 ed.); see also In re Subpoena Duces Tecum, 445 Mass. 685, 687 n. 3 (2006). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Thomas J. Rooke, Esq. SPR15/487 Page Two July 28, 2015 The City is advised that public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 289-90 (1979). Each municipal or governmental entity or agency shall have a designated "records custodian." The town clerk shall serve as records custodian unless a particular board or committee appoints an individual who shall be in charge of maintaining, storing and keeping the public records of such agency or entity by local by-law or ordinance. G. L. c. 66, § 7. Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. The City is hereby advised that should it intend to redact or withhold any information contained in the responsive records that 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) Accordingly, to comply with the Public Records Law and its Regulations the City 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. I find the City has yet to meet its burden of specificity in denying access to public records. Accordingly, the Town is hereby ordered to provide all responsive records to Ms. Shaffer in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten ( 10 ) days provide to Ms. Shaffer a written explanation, with specificity, how a particular exemption applies to each record, along with a custodial index. See 950 C. M. R. 32.07(7), and a privilege index. See 950 C.M.R. 32.08(8); see also Suffolk Constr. Co., Inc., v. Div. of Capital Asset Management, 449 Mass. 444, 460 (2008). ours, Supervisor of Records cc: Ms. Maya Shaffer