Lucy, Keith v. Danvers, Town of - Town Clerk (SPR 20150809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 28,2015 SPRlS/809 Ms. Diane M. Norris Assistant Town Manager 1 Sylvan Street Danvers, MA 01923 Dear Ms. Norris: I have received the petition of Keith Lucy appealing the response of the Town of Danvers (Town) to his requests for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Lucy requested: 1. Contact info for members of the Town's Planning Board; 2. Access to emails by a specific member of the Town's Board of Selectmen for a particular date range and containing certain key words; and 3. Access to certain correspondence between the same Selectmen member and the Town's legal counsel regarding a particular issue. 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). Request number 1 The Town denied this request in its entirety Informing Mr. Lucy that the Town does not provide personal telephone numbers or email addresses of Planning Board members. 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); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the Town did not contain the specificity OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Diane M. Norris SPR15/809 Page Two December 28, 2015 required in a denial of access to public records. To comply with the Public Records Law and its Regulations a records custodian 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 Town has failed to meet its burden under the Public Records in responding to Request 1. The Town's response did not contain the specificity required for the denial of access to public records. Request number 2 The Town informed Mr. Lucy that it has no ability to search the private email accounts which do not reside on our Exchange server. It suggested he contact the specific member of the Selectmen directly with his request. 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. The Town 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, § 10(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. Given that the Public Records Law mandates proper retention of email, these emails, written and received by Board members, should already have been segregated from the members' personal emails and the Board related emails should have been retained and filed appropriately. I find the Town has failed to meet its burden under the Public Records Law in responding to Request 2.

Ms. Diane M. Norris SPR15/809 Page Three December 28, 2015 Request number 3 With respect to Request 3, the Town is hereby ordered to review its records to determine whether it possesses any records responsive to this request. The Department is further ordered, within ten (1 0) days, to provide a written response to Mr. Lucy discussing the existence and the public status of any such records consistent with the Public Records Law. Order Accordingly, whereas the Town has not overcome the presumption that the requested records are public, the Town is hereby ordered, within ten (10) days ofthis order, to provide Mr. Lucy with a revised response prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. Ifthe Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Lucy a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); se~ also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0;00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the Town in properly organizing and retaini your email records, I am referring this matter to this office's Records Managem nt cc: Mr. Keith Lucy Mr. Terry French-RMU Senior Records and Information Manager