Collin Dias v. Fall River, City of - Office of the Corporation Counsel (SPR 20180377)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 5, 2018 SPRlS/377 Joseph I. Macy, Esq. Corporation Counsel City of Fall River One Government Center Fall River, MA 02722 Dear Attorney Macy: I have received the petition of Collin Dias appealing the response of the City of Fall River City Clerk (City) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on January 31, 2018 Mr. Dias requested "[a]ny emails from Mayor Jasiel Correia, II's email account, Jasiel91@gmail.com that have any city related business or content on said emails." Previous appeal This request was the subject of a previous appeal. See SPRl 8/282 Determination of the Supervisor of Records (March 15, 2018). In the March 15th determination I ordered the City to clarify whether responsive records exist and provide Mr. Dias with any existing responsive records in a manner consistent with the order, the Public Records Law and its Regulations. The City responded on March 21, 2018. Mr. Dias appealed and SPR18/377 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, § 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, § lO(b )(iv); 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). 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

Joseph I. Macy, Esq. SPR18/377 Page 2 April 5, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (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 March 21st response In its March 21st response the City asserts "this is clearly a personal email not subject to Public Records Law and will not be produced. The City has no access to an employee's personal emails and therefore no records exist in the control or custody of the City. As such, the City is not required to create a record in response to public records request. See G.L. c. 66 § 6A (d)." You also assert that '"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 ofrecords at the time of the request' See G.L. c. 66 § lO(a) (ii). Such records, if they exist are not in the possession, custody, or control of the City." A public employee has a diminished expectation of privacy with respect to use of personal email used in an official capacity. 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 and email addresses 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 Momoe, 152 Wn. App. 830 (2009) (Personal email addresses used by City Council members to discuss city business are not exempt from disclosure under public disclosure statutes). The City is advised that public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § lO(a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). 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. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); Flatley, 419 Mass. at 511. In light of the above, I find the City has not met its burden to withhold responsive records in their entirety. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). This office encourages Mr. Dias and the City to communicate further to narrow the scope of this request. See G. L. c 66, § lO(a)(i). The City must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § 1O (b )(vii) ( a municipality shall suggest

Joseph I. Macy, Esq. SPR18/377 Page 3 April 5, 2018 a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the City is ordered to clarify whether responsive records exist and provide Mr. Dias with any existing responsive records 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, ~~~ Rebecca S. Murray Supervisor of Records cc: Collin Dias Alison M. Bouchard, City Clerk