Bob Murchison v. Sherborn, Town of - Town Administrator (SPR 20160694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 16, 2016 SPR16/694 Mr. Joshua D. Monahan, Esq. KP Law, P.C. 101 Arch Street Boston, MA 02110 Dear Attorney Monahan: I have received the petition of Robert Murchison appealing the August 15, 2016 the Town of Sherborn (Town) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, as revised on July 6, 2016 Mr. Murchison requested a copy of the phone bills with call records for all cell phones used by two specifically-named individuals for calls made regarding Board of Health (Board) business for April, May and June in years 2011, 2012, 2013 and 2014. On August 15, the Town provided a written response and the responsive cell phone bills, of one of the specifically-named individuals, redacted pursuant to Exemptions (c), ( o) and (p ), and denied Mr. Murchison's request for the personal cell phone records of both specifically-named individuals. The Public Records Law 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). Prior appeal and determination The July 6, 2016 request was the subject of a prior appeal and determination by the Supervisor of Records. See SPR16/562 Determination ofthe Supervisor of Records (August 10, 2016). In the prior appeal, Mr. Murchison petitioned this office after receiving responsive records, but with the belief that the Town may have further records responsive to his July 6 request. In my prior determination, I closed the appeal based on the Town's promise to provide a revised response regarding any additional responsive records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Joshua D. Monahan, Esq. SPR16/694 Page2 September 16, 2016 On August 15, 2016, you provided a supplemental response to the request for the cell phone records of one of the specifically-named individuals' cell phone bills for a cell phone paid for with Town funds. The response provides a log of each bill and the specific information that was redacted along with the exemption claimed per redaction. In particular, the Town redacted horne telephone numbers of Town employees and Town employee family numbers pursuant to Exemption ( o) and (p ), and telephone numbers related to particular medical providers under Exemption (c). Furthermore, your response explains that the Town has no phone bills for any personal cell phones, because one of the specifically-named individuals did not own or use a "personal" cell phone to conduct Town business during April, May and June in 2011, 2012, 2013 or 2014. The Town has no cell phone records for a specifically-named individual who was not a Town employee, but an individual contracted by the Town. It is my understanding that this contractor did not submit any of his "personal" cell phone bills for reimbursement by the Town. Basis of this appeal-SPR16/694 Mr. Murchison appealed the August 15 response regarding "personal" cell phone bills, and asks this office for further review on that issue. In his petition, he states, "[T]he Town has not provided the cell phone records for both the specifically-named individuals for their personal cell phones. Both ofthose phones were used for Sherborn Town business for many years. Furthermore, it appears that one of these individuals has been disingenuous in her answer to counsel on the existence of a personal cell phone prior to the middle of2014." Whereas, Mr. Murchison has failed to offer any evidence to support his contention that the specifically-named employee utilized a "personal" cell phone to conduct Town business, I consider the matter closed as to that request. The Town has already provided the cell phone records for the phone used by the employee to conduct Town business, and it is this particular cell phone that is paid with Town funds. There is a presumption that public officials perform their duties in an honest and impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 545, 459 (1983); see also Konover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319,326 (1992). Personal cell phone records of a "contracted" individual An attorney on my staff contacted you, however was unable to connect with you. It is still unclear whether the specifically-named contracted individual used his "personal" cell phone to conduct any Town business, in particular any Board of Health business for the Town. If so, those "personal" cell phone records may be subject to the Public Records Law.

Mr. Joshua D. Monahan, Esq. SPR16/694 Page 3 September 16, 2016 Order I find the Town has failed to fully respond to a request for public records. Accordingly, the Town is hereby ordered, within ten (10) days of this order, to provide Robert Murchison with another supplemental response to the request for the "personal" cell phone records of a contractor for the Town, provided in a manner consistent with this order, the Public Records Law and its Regulations. 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. s, Supervisor of Records cc: Mr. Robert Murchison (via email) Mr. David Williams, Town Administrator