Kim Sherwood v. Topsfield, Town of - Planning Board (SPR 20170476)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 13, 2017 SPR17/476 Donna C. Rich Coordinator Topsfield Planning Board 8 West Common Street Topsfield, MA 01983 Dear Ms. Rich: I have received the petition of Kim Sherwood appealing the response of the Topsfield Planning Board (Board) to her request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Sherwood requested an audio recording of the Board's meeting minutes on March 22, 2016. In the Board's response, they claim that the recording is "no longer available." Unsatisfied with this response, Ms. Sherwood petitioned this office and this appeal was opened as a result. 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, § }(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, § lO(b); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Donna C. Rich SPR17/476 Page2 April 13, 2017 To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Records management A review of the materials provided by Ms. Sherwood raise questions regarding the records management practices of the Town, in particular whether permission is being sought and granted by the Supervisor of Records prior to the destruction ofrecords. 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 Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The Town is reminded that it must submit an Application for Destruction Permission RMU-2 form, and must receive approval, before certain records may be disposed. For the purpose of this appeal, it is important to note that any recordings of any kind taken of a meeting of a public body for use in drafting meeting minutes must be retained until the final minutes are approved or administrative use ceases, whichever occurs later. Series 01.080 Open Meeting Law: Recordings of Meetings for Use in Drafting Minutes, Municipal Records Retention Schedule. Safeguards must be instituted by the Town to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. To assist the Town in meeting its burden, I advise that the Town review the Municipal Records Retention Schedule, available online at: www.sec.state.ma.us.arc/arcpdf/Municipal Retention Schedule 20161109pdf. In addition, training workshops on records management are conducted upon request. Please contact the Records Management Unit (RMU) at 617-727-2816 to request assistance. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Conclusion Subsequent to the intervention by a staff member of the Public Records Division, a representative from the Board explained that the "recording pen" is more of a secretarial aid than it is an audio recording device. The Board explained the recording pen has different functionality than a typical audio recording device. As such, the recording pen does not possess the ability to save and recall data from previously archived conversations. Furthermore, it was explained that

Donna C. Rich SPR17/476 Page 3 April 13, 2017 this recording pen has since broken. Consequently, it is not possible to recover recordings due to the pen's inability to work properly. As no records responsive to this request exist, I will now consider this administrative appeal closed. However, as noted above, the Board is advised that it has a responsibility to contact this office to obtain permission when disposing of public records. If it is in the nature of the technology to automatically self-delete records, or the technology does not have the capacity to save information for the required retention period, the custodian is responsibl.e for finding alternative ways of preserving records until destruction permission has been granted. Sincerely, Rebecca S. Murray Supervisor of Records cc:. Kim Sherwood