Debra Waller v. Newton, City of - City Clerk (SPR 20180149)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 13,2018 SPR181149 David Olson City of Newton - City Clerk 1000 Commonwealth Avenue City Hall, Frist Floor Newton, MA 02459 Dear Mr. Olson: I have received the petition of Debra Waller appealing the response of the City of Newton (City) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, on December 8,2017, Ms. Waller requested "[all1 emails [between an identified individual and a City Councilor] on [the Councilor's] private email address . . . @verizon, and all other private email addresses by [the City Councilor], in which [he or she] discusses Newton government business with [the identified individual]." Ms. Waller provided a date range from 91111 6 through 91111 7. The City provided responsive records on December 22,2017 . Supplemental responses were also provided on January 3,201 8 and January 5,2018 . Contending that she did not receive a complete response, Ms. Waller petitioned this office and this appeal, SPR181149, 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, 5 1O A(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, 5 7(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, 5 lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 5 11 (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. One Ashburton Place, Room 1719 , Boston, Massachusetts 02108 * (617) 727-2832. Fax: (61 7) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

David Olson Page 2 February 13,2018 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. The City's January 3'd and 51h responses After multiple correspondences between the City and Ms. Waller about a particular March 1,201 7 email that was not provided, the City provided a response on January 3,20 18. In this response, the City indicated that it was producing in its entirety an email that was previously redacted and for a second time the March 1,2017 email. The City noted that "[all1 responsive public records have now been produced . . ." Responding to follow-up questions from Ms. Waller, the City, in its January 5,2018 response indicated that, although it was not required to answer questions, . . the City does not ", archive nor has access to any private email accounts of employees of elected officials." The City reiterated that all public records in its custody or control responsive to Ms. Waller's request have been produced. Content of the record It should be noted that access to a record requested pursuant to the Public Records Law rests on the content of the record. "Public records" is broadly defined to include' all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any town of the Commonwealth to serve a public purpose, unless falling within a statutory exemption. G. L. c. 4, 5 7(26). The City is advised that public records, including emails made or received in an individual's capacity as a government employee, 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, 5 10(a); see also Reinstein v. Police Commissioner of Boston, 378 Mass. 281,289-90 (1 979). Whenever original public records are created outside the municipal offices, they shall be transferred on a regular and frequent basis to secure storage in the municipal building. The use of personal email addresses by government officials, employees and/or board and commission members while conducting any day-to-day business of a government entity renders the emails public records. At least one Court has found that personal email addresses used for a public purpose by a government employee are a public record. See Mechling v. City of Monroe, 152 Wn. App. 830,845-47 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes).

David Olson Page 3 February 13,201 8 Additional responsive records The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, 8 lO(a)(ii) (written response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency"). Although the City claims it has produced all responsive records, Ms. Waller claims she did not receive an original email from an identified individual to the City Councilor's personal email address . . .@,verizon.net, sent between 4:07 pm and 5: 13 pm on 3/1/17. She also believes that there may be email records from the City Councilor's personal email address that may have been deleted or withheld from disclosure. Although the City claims in its responses that it has produced all responsive records, it remains unclear why the City does not possess the record Ms. Waller claims should be in its custody. The City must also clarify if there are additional responsive email records from the City Councilor's personal email address discussing Newton government business that have not been provided. If the City maintains that the responsive records no longer exist, it must explain in writing its justification under the Public Records Law and the Municipal Records Retention Schedule (Schedule) for destroying the records. See G. L. c. 66, § 10(a)(i). I understand a Public Records Division staff attorney contacted your office about this appeal. Order Accordingly, the City is hereby ordered to provide Ms. Waller with a response to the request, explaining whether it possesses or was once in possession of the 3/1/17 email record or additional email records and its justification under the Public Records Law and the Schedule for destroying the records. This response must be provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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, w Rebecca S. Murray Supervisor of Records cc: Debra Waller