Kelly M. Kelly v. Townsend, Town of - Town Administrator (SPR 20170286)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 17, 2017 SPR17/286 James M. Kreidler, Jr. Town Administrator Memorial Hall, Upper Level 272 Main Street Townsend, MA 01469 Dear Mr. Kreidler: I have received the petition of Kelly Kelly appealing the response of the Town of Townsend (Town) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kelly requested access to a specifically identified audio recording made by a Town employee during a meeting. The Town denied her request claiming the responsive record is exempt from the Public Records Law pursuant to Exemption ( e ). Ms. Kelly states in her appeal that the recording was shared and, therefore, Exemption ( e) does not apply. 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, § lOA(d); 950 C.M.R. 32.03(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). Exemption (e) notebooks and other materials prepared by an employee of the commonwealth which are personal to him and not maintained as part of the files of the governmental unit G. L. C. 4, §7 (26) The exemption may not be applied by custodians ofrecords to withhold materials intended for communication or preservation. Records are protected from mandatory disclosure by Exemption (e) only if they meet the two criteria of the exemption. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

James M. Kreidler, Jr. SPR17/286 Page 2 March 17, 2017 The first criterion of Exemption ( e) limits its application to work related records that can be characterized as "personal" to the employee, such as notes created to refresh an employee's memory of a work related activity or notes created by an employee to assist in preparing reports for other employees of the governmental entity. Notes that have been shared by the employee may not be considered to be "personal" pursuant to Exemption ( e ). It is my understanding based on a March 3rd email from the Town to Ms. Kelly that the requested recording was shared. The second criterion of Exemption ( e) requires that the notes not be kept in a government file. Under the exemption, "files of the governmental unit" excludes working files that are transitory in nature. Such files lack the permanent nature of a government file. Therefore, the retention of materials in such a working file would not bar the application of Exemption ( e) and the Town may withhold from disclosure any personal notes that were not shared with others and were not part of such a governmental file. Order Given that the Town asserts the recording has been shared, the Town has not met its burden in withholding the recording in its entirety. Accordingly, the Town is hereby ordered to provide Ms. Kelly with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kelly Kelly