David Kokindo v. Hinsdale, Town of - Office of the Board of Selectmen (SPR 20170586)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2017 SPR17/586 Katherine Warden Administrative Assistant - Board of Selectmen Town of Hinsdale 39 South Street Hinsdale, MA O1 23 5 Dear Ms. Warden: I have received the petition of David Kokindo appealing the response of the Town of Hinsdale Board of Selectmen (Town) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on March 30, 2017 Mr. Kokindo requested two categories of records: 1) a copy of the Town Administrator's phone records and 2) a copy of all email messages sent to and received between the employees of the Town and a specifically named Town employee from January 24 through April 1, 2017. Initially, the Town only provided partial records responsive to his request. Believing the Town intentionally denied him access to public records, Mr. Kokindo petitioned this office. Prior appeals The requested records were the subjects of prior appeals. See SPRl 7/494; SPRl 7/523 Supervisor of Records Determination (April 19, 2017; April 28, 2017). In regards to those appeals, Mr. Kokindo had petitioned this office objecting to the excessive fee the Town wanted to charge for searching for records that the Town may or may not have. Those administrative appeals were closed with the proviso that the Town provide a more substantial response. The Town informed this office that they had provided revised responses dated April 18th and April 27th. Current Appeal and the Public Records Law Mr. Kokindo originally made a public records request to you on March 30th for two categories of records. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § lO(a),(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 1O (b ). All 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

Katherine Warden SPRI 7/586 Page 2 May 10, 2017 records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. On that same day you provided Mr. Kokindo with two written, good faith fee estimates, one for the phone records and the other for the emails. Subsequently, on April 18t\ you stated in an email response to Mr. Kokindo, "[the specifically named Town employee] destroys all her emails." It is important to note that the Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § IOA(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). On April 28th, Mr. Kokindo appealed to this office contending that "many of the records are incomplete and I do believe the Town is withholding most of the records or not complying with the request." At the heart of his concerns is his objection to the missing emails that he contends were to be kept and maintained by the Town. Subsequent to Mr. Kokindo filing his latest appeal, the Town attempted to compile the responsive records through alternative means, which then was forwarded to Mr. Kokindo in a series of emails. Despite the Town's efforts, Mr. Kokindo does not believe that the Town was being forthcoming with the response to his request. Email records - Maintenance of records In the petition for an appeal, Mr. Kokindo states a named employee of the Town may not use personal email for Town business and then destroy the emails. He takes issue with the Town charging him a fee for the location of the deleted emails from other sources when the Town did not follow the Public Records Law in properly retaining the records. A review of the materials provided by Mr. Kokindo raises questions regarding the records management practices of the Town, in particular whether email correspondence by Town officials and employees are being retained for appropriate periods of time prior to destruction. 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 Records Retention Manual, available free of charge online at www.sec.state.ma.us/arc/arcrmu/ rmuidx.htm. 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, free of charge, 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

Katherine Warden SPR17/586 Page 3 May 10, 2017 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. Order I find the Town has not met its burden in responding to a request for public records. Accordingly, the Town is hereby ordered to conduct a diligent search to determine whether any additional responsive records exist. Furthermore, the Town is hereby ordered to, within ten business days of this order, to provide Mr. Kokindo with a revised response to the request for public records, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Town maintains that any portion of the responsive records are exempt from disclosure it must, within ten business days, provide to Mr. Kokindo a written explanation, with specificity, how a particular exemption applies to each record. 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 District 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. 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 Mr. Kokindo is not satisfied with the determination in this matter, this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lOA (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David Kokindo