Richard Squailia v. West Stockbridge, Town of - Town Clerk (SPR 20160335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 3, 2016 SPR16/335 Ms. Ronni Barrett Town Clerk Town of West Stockbridge 21 Stateline Road West Stockbridge, MA 01266 Dear Ms. Barrett: I have received the petition of Richard Squailia appealing the response of the Town of West Stockbridge-Town Clerk's Office (Town) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Squailia requested a "digital file of the voter registration data (that Town has)." Having received a denial of access to a copy of the record in its native format, Mr. Squailia petitioned this office. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Town is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The Town provided an initial response, but otherwise failed to meet its burden in providing a response to a request for public records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days ofthe request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. Town is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. In his appeal petition, Mr. Squailia explains he requested the responsive records in their native electronic format. The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Ronni Barrett SPR16/335 Page 2 June 3, 2016 7(26) (defining "public records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). Where the native form of the records requested is electronic a records custodian must provide the record in that form, absent a statutory exemption claim to the contrary. The Town has claimed no exemption to assist it in denying responsive records in native form. The Town has also not clarified whether the responsive record exists in its custody in electronic form. See 950 C.M.R. 32.03. It is, however, my understanding that the record does exist in electronic form. Other states have recognized the fact that electronic records must be disclosed in native form in response to a request for public records. See Lake v. City of Phoenix, 107 Fair Emp l. Prac. Cas. (BNA) 1142 (2009) (if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure). Conclusion Accordingly, the Town is hereby ordered without delay to review the requests made by Mr. Squailia and provide a written response to him, made in accordance with the Public Records Law, its Access Regulations and this order. If the Town maintains that any portion of the responsive records are exempt from disclosure it must provide to Mr. Squailia 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); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), 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 responding to requests for public records I refer you to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys and other members of my staff are available during regular business hours to answer general questions regarding the Public Records Law.

Ms. Ronni Barrett SPR16/335 Page 3 June 3, 2016 In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. illiams cc: Mr. Richard Squailia