Steve Dondley v. Westfield, City of - City Council (SPR 20180505)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 1,2018 SPR18/505 Councilor Matthew Emmershy Westfield City Council City of Westfield 59 Court Street Westfield, MA 0 1085 Dear Councilor Ernrnershy: I have received the petition of Mr. Steve Dondley appealing the response of the City of Westfield City Council (City) to his request for public records. G. L. c. 66, 5 IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Dondley requested recordings of City Council meetings posted to a Councilor's personal Facebook page. Previous appeal This request was the subject of a previous appeal. See SPRl81374 Determination of the Supervisor of Records (March 26,201 8). I closed SPR181374 by ordering the City to provide Mr. Dondley with a supplemental response. The City provided a response dated April 13,2018 . Unsatisfied with this response, Mr. Dondley petitioned this office, and this appeal (SPR181505) was opened as a result. Tlze 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 10A(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 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attornev for the Norfolk Dist. v. Flatlev, 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: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Councilor Matt Emmershy Page 2 May 1,2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its response dated April 13,2018, the City explains that the "'live stream' of certain public meetings by Mr. Emmershy are not archived by the City of Westfield. These 'live streams' have been recorded in public meeting by Mr. Emmershy both before he was a member of the City Council and after his election. He uses his own equipment and none of the video is authorized or used by the City." The City claims that for these reasons, "this is not a public record." In his appeal petition dated April 13,2018, Mr. Dondley claims that "regardless of who owns the ownership of the capturing equipment utilized, the meeting [Councilor Emrnershy] documented is public record. It seems to me that if he used his own pen and paper to document the meeting minutes and posted images of those on Facebook, those would also be a public record." Consistent with precedent set by this office, a public official may create a video recording of a meeting of a public body in their capacity as a private citizen, so long as the official is not acting on behalf of the public body. SPR071025 Supervisor of Records Determination (March 2,2007). Additionally, under the Public Records Law, the City is not required to create a record in response to a public records request. See G. L. c. 66, tj 6A(d). 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, tj lO(a)(ii). Given that it is not the policy of the City Council to record its meetings, it is the finding of this office that any video recordings of City Council meetings created by Councilor Emmershy were done so in his capacity as a private citizen. Consequently, those recordings are not public records in the custody of the City. Conclusion Accordingly, as the basis of this appeal was the City's failure to provide public records responsive to Mr. Dondley's request, I will now consider this administrative appeal closed. Sincerely, kebecca S. Murray V Supervisor of Records cc: Mr. Steve Dondley Attorney Susan Philips